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Legal Memorandum: Elective Share of Surviving Spouse of Decedent

Issue: What right does a surviving spouse have to a decedent’s estate under New Jersey law?

Area of Law: Estate Planning & Probate
Keywords: Elective share statute; Right of election to take an elective share; Augmented estate
Jurisdiction: New Jersey
Cited Cases: None
Cited Statutes: N.J.S. 3B:8-1; N.J.S. 3B:8-3; N.J.S. 3B:8-5; N.J.S. 3B:8-6, 3B:8-7; N.J.S. 3B:8-18(a), (b); 3B:8-6; N.J.S. 3B:8-18(c)
Date: 01/01/2006

Section 3B:8-1 provides that “the surviving spouse has a right of election to take an elective share of one-third of the augmented estate.”  N.J.S. 3B:8-1.  However, New Jersey law does not give a surviving spouse an absolute right to any share of the decedent’s augmented estate.  In Re Estate of Bilse, 329 N.J. Super. 158, 161 (Ch. Div. 1999) (“[T]he surviving spouse is not simply entitled to take one third of ‘[the] estate.”). 

The New Jersey elective share statute is patterned after the Uniform Probate Code.  Unlike the Code, however, “New Jersey’s elective share statute is unique in that the surviving spouse is entitled to one-third of the augmented estate only to the extent that its value exceeds the value of the surviving spouse’s independent property” and other property derived by the surviving spouse from the death of the decedent.  Aragon v. Estate of Snyder, 314 N.J. Super. 635, 640 (Ch. Div. 1998); see also In re Estate of Bilse, 329 N.J. Super. at 106 (“[T]he elective share statute is primarily need-based as expressed within the statute, the relevant case law, and the legislative record for the elective share statutory scheme.”); In re Estate of Cole, 200 N.J. Super. 396, 404 (Ch. Div. 1984) (New Jersey’s elective share statute allows a share of the augmented estate “only to the extent the spouse satisfies a test of need”).  Accordingly, under N.J.S. 3B:8-15, the court must, first, establish the value of the augmented estate and the corresponding elective share […]

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