What happens if you write a will, but you intend to leave your spouse out?
Can You Leave a Spouse Out of a Will?
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In New Jersey as in most states in the United States, you can leave a spouse out of a will, but then the spouse has the power to elect a share of the estate that you left them. If you said I give my spouse $10,000, poof, New Jersey says wait a minute. we’re not going to allow that. We’re going to give the surviving spouse the opportunity to elect a share of the estate. They have a special word for this called the augmented estate. They will increase the estate by things that pass outside the will but that is intended to avoid going to the surviving spouse anyway.
The Augmented Estate
For example, let’s say you cannot stand your husband. So to protect yourself you create a trust. The trust states that the benefit goes to me and then I give it to my sister or my boyfriend, whatever I want to do. When I pass away, it’s not in my estate. I’ve created a trust. If I retained a certain interest in it or if I made that transfer within two years of my death and it was for more than $3,000, then New Jersey brings that giveaway back into the pot, adds it all in, looks at what the spouse got separately and then allows them to have one-third of the augmented estate. There’s some fine-tuning around that, but you get a general idea.
There are certain assets that are additionally excluded, additionally included, but then New Jersey does another thing that’s very interesting. Their philosophy is we do not want to enrich an otherwise rich spouse. Our purpose is to avoid destitution among the surviving spouses. What they’ll do is they say we’ll allow a percentage of the augmented estate to go to the surviving spouse but we’re going to offset it by what she has or he has on his own. If you happen to have a very wealthy spouse, they’re going to inherit nothing other than what was provided in the will. They lose that right of election.
New Jersey has another interesting law where they say if you are married but you are living separate and apart under circumstances that would give rise to an action for divorce or if you are in the process of divorcing, then you also lose your right to claim the elective share, yet another different wrinkle on how we want things to go. New Jersey wants to provide that in the traditional couple setting, by that I mean they’re living intact, there’s not been a divorce, you can’t disinherit a spouse who otherwise doesn’t have adequate means.
There are differences in what I’ve just discussed from New York. For example, New York does not have an augmented estate concept. It does not pay any attention to the assets of the surviving spouse, which are both hugely significant and often surprising to practitioners who are drafting wills.
The wills and estates team at Gartenberg Howard specializes in estate planning issues such as leaving a spouse out of a will, property distribution, long-term tax, how to treat each child, asset, and other inheritance issues. Fill out the form below or give us a call at (201) 488-4644 to get answers to your questions and to discuss any specific concerns.