Bercik Law Blog

N.J. Omitted Spouse Law – I’m not inheriting my husband’s estate because his will was made before our marriage.

New Jersey Omitted Spouse Statute.omitted spouse

If your husband’s or wife’s will was made before your marriage the Omitted Spouse statute may be the solution to claiming your inheritance.

The law provides relief to an omitted spouse of a deceased testator in New Jersey. In situations in which a spouse fails to provide for his or her surviving spouse or domestic partner, and the spouse married the testator after the execution of the testator’s Will, the omitted spouse is entitled to his or her intestate share.  This  intestate share means the share you would receive by law if your spouse had died without any will.

Beware of some exceptions to the Omitted Spouse Statute

There are exceptions that other beneficiaries my raise to your omitted spouse claim.  The omitted spouse rule does not apply if; “(1) it appears from the will or other evidence that the will was made in contemplation of the testator’s marriage to the surviving spouse or in contemplation of the testator’s formation of a domestic partnership with the domestic partner; (2) the will expresses the intention that it is to be effective notwithstanding any subsequent marriage or domestic partnership; or (3) the testator provided for the spouse or spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator’s statements or is reasonably inferred from the amount of the transfer or other evidence.

You may also claim under the Elective Share statute in addition to the the Omitted Spouse.

If a spouse or domestic partnership dies domiciled in New Jersey, the surviving spouse has a right of election to take an elective share of one-third of his or her spouses augmented estate.  The surviving spouse must elect to take the elective share by filing a complaint with the court within six months after the appointment of a personal representative of the decedent’s estate.  The election is allowed under the limitations and conditions that at the time of death the decedent and the surviving domestic partner had not been living separate and apart in different habitations or had not ceased to cohabit.

The legal analysis under these probate law can be complex.  Consult an experienced probate attorney to protect your rights under the Elective Share and Omitted Spouse law.

Learn more about N.J. Inheritance Law Dispute.

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