Am I correct in understanding that if a married person dies intestate their surviving spouse can choose between taking their intestate share OR an elective share? I understanding that an intestate share is $50,000 plus 1/2 of remainder, and an elective share is 1/3 of the whole, so is it more advantageous to take one over the other, or is it particular to the specific person's assets?
2 Answers from Attorneys
You are correct that a surviving spouse has an election, but possibly mistaken as to what is the intestate share, which depends upon other possible heirs. The intestacy laws in NJ are:
The surviving spouse receives everything in an intestate estate in only two sets of circumstances. The first is if the intestate deceased had a surviving spouse but neither surviving issue (children, grandchildren, etc.) nor parents. The second is if the deceased had a surviving spouse and surviving descendants but each of these descendants was also the surviving spouseís descendants and the surviving spouse had no other descendants. In other words, if the surviving spouse has children from another relationship the State puts aside some of the intestate estate only for the biological descendants, in case the surviving spouse decides to share the inheritance with what were step-children of the deceased.
If the deceased has no descendents, but is survived by a spouse and at least one parent, then the surviving spouse receives the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-quarters of any balance of the intestate estate. The surviving parents equally share the remainder.
If the deceased has a surviving spouse and descendents, all of whom are also the descendants of the surviving spouse, but the surviving spouse has his or her own descendants that are not the descendants of the deceased (step children), then the surviving spouse receives the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate. The remainder passes to the deceasedís descendants.
The spousal election is 1/3 of the estate less what the surviving spouse has personally. Thus, if a surviving spouse has significant assets, there may be no spousal elective share.
NY Rules are different. Check the Decedent Estate's Law