Disclaimer: This article is for informational purposes only and does not constitute legal advice. For advice specific to your situation, consult a New Jersey attorney.
Detailed Answer
Dower and Its Abolition
Historically, dower granted a surviving spouse a life estate in a portion of the deceased spouse’s real property. New Jersey abolished dower effective September 18, 1970. See N.J.S.A. 3B:2-1. Today, no statutory right exists for a spouse to demand a life estate in real property as an alternative to other inheritance rights.
Elective Share Under New Jersey Law
New Jersey replaced dower with the elective share. Under N.J.S.A. 3B:2-2.1, a surviving spouse may elect to claim a statutory share of the deceased spouse’s estate instead of property left by a will. The elective share equals one-third of the augmented estate’s net value. The spouse must file a formal election within nine months of the decedent’s death.
Intestate Succession Rights
If the decedent died without a will, intestate succession rules apply under N.J.S.A. 3B:5-2. A surviving spouse inherits:
- The entire estate if there are no surviving descendants or all descendants are also descendants of the spouse
- $50,000 plus one-half of the remaining estate if there are surviving descendants who are not also descendants of the spouse
Life Estate Election Option
Because New Jersey abolished dower, a spouse cannot elect to receive a life estate instead of an intestate share. The only statutory election available is the elective share under N.J.S.A. 3B:2-2.1. However, if a decedent’s will voluntarily grants a life estate in certain property, the spouse may accept that gift as provided in the will.
Conclusion
Under current New Jersey law, you cannot elect a life estate in lieu of your intestate share. Your options are limited to electing the statutory elective share in cash value or accepting distributions under intestate succession. A life estate arises only if expressly granted by the decedent’s will.
Helpful Hints
- File your elective share election within nine months of the decedent’s death to preserve rights.
- Gather information on all transfers, joint accounts, and gifts within three years before death to calculate the augmented estate.
- Compare the cash value of the elective share with any will provisions before deciding.
- Consult an estate attorney early to understand deadlines and required filings.
- Review N.J.S.A. 3B:2-2.1 and N.J.S.A. 3B:5-2 for full statutory details.