Under New Jersey law, if a decedent dies without a valid will, his or her estate passes by intestacy to his or her heirs, in accordance with the New Jersey intestacy statute, N.J.S.A. 3B:5-1 et seq. That statute defines the decedent’s heirs, and sets forth the percentages that heirs will receive, depending on the decedent’s family. In a typical case where the decedent dies without a surviving parent, and the decedent and surviving spouse did not have children or grandchildren from other relationships, the surviving spouse will inherit the decedent’s entire estate. But what is a “surviving spouse”?
When a married couple divorces, they are no longer “spouses.” However, effective January 2024, the New Jersey intestacy statute specifies other situations in which a spouse will not be considered a “surviving spouse,” and thus will be barred from inheriting a share of the estate.
The statute now excludes a spouse from inheriting if there had been a pending divorce proceeding between the couple when the decedent died. The statute goes further, also excluding the spouse from inheriting in certain cases where the couple had ceased to cohabit, or had made an agreement regarding dividing their assets, prior to the decedent’s death.
The full text of this provision is as follows:
“Surviving spouse, partner in a civil union, or domestic partner” shall not include:
- an individual who has filed a complaint not dismissed pursuant to R. 4:6-2 of the Rules of Court, or against whom a complaint not dismissed pursuant to R. 4:6-2 of the Rules of Court, has been filed for: divorce, dissolution of civil union, termination of domestic partnership, or divorce from bed and board; or
- an individual who has entered into a validly executed equitable distribution cut-off agreement or termination agreement where the underlying subject matter of the complaint or equitable distribution cut-off agreement or termination agreement is divorce, dissolution of civil union, termination of domestic partnership, or divorce from bed and board; or
- an individual who at the time of death of the decedent had:
- ceased to cohabit with the decedent under circumstances which would have given rise to a cause of action for divorce or nullity of marriage to a decedent prior to his or her death under the laws of this State; and
- where, through written agreement, affirmative acts, or both written agreement and affirmative acts of the individual and decedent there had been a division of assets equivalent to equitable distribution; or,
- an individual who, at the time of death of the deceased, had entered into a validly executed marital settlement agreement with the decedent where the underlying subject matter of the marital settlement agreement is divorce, dissolution of civil union, termination of domestic partnership, or divorce from bed and board.
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