Assume that your spouse died with a will made before you met, got married and had children and that will names only your deceased spouse’s parents and siblings as beneficiaries? Assume too that the only children that you, the surviving spouse, have and the decedent had were children you had together. Do you, the surviving spouse, get anything from your deceased spouse’s estate? The answer is probably yes.There is a statute in New Jersey (N.J.S.A. 3B:5-15), entitled Inheritance by Spouse or Children Not Provided for in Will. It provides that distribution of the deceased spouse’s estate by “intestacy” applies for a subsequent spouse or afterborn child if the decedent married or had a child after the will is executed, unless the decedent’s intentions are otherwise as indicated by the will or other circumstances.
Intestacy means dying without a will. Thus, in the case of a will made prior to marriage and/or the birth of children of the decedent, in most cases the intestacy laws of the State of New Jersey will govern whether the wife and/or children who are omitted from the will receive a share of the estate. In most cases, in the absence of very clear direction from the deceased, the will executed before the decedent married will no longer govern whether his wife and children receive a part of the estate
Under the intestacy laws in New Jersey, the wife that was omitted from the will receives the entire estate if either: (1) there are no descendants of the deceased spouse or parent who survives the deceased spouse or (2) all of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent.
So, under the scenario presented at the beginning of this article, the surviving spouse would receive the entire estate because the children of the surviving spouse are also the children of the decedent and because neither the decedent nor the surviving spouse had any other children.
If you have lost a spouse and you feel that you are not receiving your fair share of your spouse’s estate it is important to contact a qualified attorney who has experience with estate litigation matters. Time is of the essence because you have only four months to challenge a will in the State of New Jersey or six months if you live out of state. An experienced estate litigation attorney will be able to file a complaint for you in the Chancery Division of the State of New Jersey in the County in which the decedent resided and ask the Court to restrain the executor or administrator of the estate from distributing any assets of the estate until such time as your rights are fully adjudicated, place a constructive trust on the assets and demand an accounting of the assets. It is important to gather any documents that reference any assets owned by your spouse including bank statements, brokerage statements, tax returns, title to vehicles, deeds and trusts. Do not sign any legal documents without retaining the services of an estate litigation attorney to assist you in reviewing the documents and determining what rights you have to the estate. It is obviously a highly emotional time for all the family members involved and making rash decisions during this time that you may regret later is not the best decision for your future. The best thing you can do is to speak to an attorney.
If you have any questions about estate litigation, contact the author of this article, Elyse Herman, who is a senior associate attorney with the law firm of Pellettieri Rabstein & Altman specializing in estate litigation. She can be reached at 609 520 0900.
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