Can You Disinherit Your Spouse: Understanding the Elective Share Rights of Surviving Spouse (Part 2 of a 2 Part Series)

This is part 2 of a 2 part series addressing the subject of whether you can or cannot disinherit your spouse. To read the entirety of that post (click here). Today, I am going to wrap things up for you on this topic.

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Planning & Estate Administration Attorney

So when must a surviving spouse claim his or her elective share and who may exercise the right to take an elective share? The right of election to take an elective share by a surviving spouse may be exercised only by the surviving spouse during his or her lifetime. That means if the spouse dies before claiming his or her elective share rights, his or her death prevents an executor or administrator from making a claim as part of the estate. In the case of a surviving spouse for whom the court has appointed a guardian to manage his estate, the right of election may be exercised only by order of the court making the appointment after finding that the election is necessary to provide adequate support of the surviving spouse during his probable life expectancy. The surviving spouse may elect to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of a personal representative of the decedent’s estate. The court may, before the time for election has expired and upon good cause shown by the surviving spouse, extend the time for election upon notice to persons interested in the estate or beneficiaries of the augmented estate whose interests will be adversely affected by the taking of the elective share.

To discuss your NJ Estate Planning or Estate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.