Q. When a husband or wife dies, are they required to leave some or all assets to the other spouse or can they give every asset to someone else?
A. There is no requirement that spouses leave assets to each other when they die.
But it’s not that simple.
The surviving spouse may be entitled to an “elective share” of the deceased spouse’s estate even if the surviving spouse is disinherited under the deceased spouse’s will, said Shirley Whitenack, an estate planning attorney with Schenck, Price, Smith & King in Florham Park.
She said the surviving spouse cannot claim an elective share if the spouses were living separate and apart in different residences, or had ceased living together as a married couple, or had a valid prenuptial or post-nuptial agreement that waives the elective share.
She said the elective share is equal to one-third of the “augmented estate.”
“The augmented estate is the deceased spouse’s estate minus funeral and estate administration expenses and enforceable claims,” she said. “Certain transfers of property for less than fair market value made by the deceased spouse are added back to this amount.”
Whitenack said then, the surviving spouse’s assets are deducted from the elective share.
If the surviving spouse’s assets, including any assets that were inherited by the surviving spouse from the deceased spouse, are more than one-third of the augmented estate, then the surviving spouse is not entitled to an elective share, she said.
“A complaint for an elective share must be filed within six months of the appointment of an executor in the county where the appointment was made,” Whitenack said.
So, because of the relatively short time period in which to file the elective share complaint, an experienced attorney should be consulted as soon as possible after the deceased spouse’s death to determine whether the surviving spouse is entitled to an elective share, Whitenack said.
“The onus is then on the omitted spouse to file an elective share action,” she said. “In New Jersey, if the complaint is not filed within six months from the time of probate, the surviving spouses loses the right to that share.”
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