Spousal Elective Share Requirements in New Jersey

At a glance

Requirements one by one

Eligibility and the one-third share

New Jersey gives an eligible surviving spouse of a New Jersey domiciliary a right to one-third of the augmented estate. The fraction does not change with marriage length.

An undismissed complaint for divorce, dissolution, termination, or divorce from bed and board bars the right. The 2023 amendment also cross-references the categories in § 3B:5-3(d), including specified equitable-distribution or termination agreements, a qualifying end of cohabitation combined with an asset division equivalent to equitable distribution, and a qualifying marital settlement agreement. Mere residence in different homes is not by itself the current statutory test.

The spouse must exercise the right while alive. If a court has appointed a guardian to manage the spouse's estate, only the appointing court may authorize the election after finding it necessary for the spouse's adequate support over the spouse's probable life expectancy.

Augmented estate and nonprobate transfers

The starting estate is reduced by funeral and administration expenses and enforceable claims. It then adds specified transfers made during marriage without full consideration to someone other than the spouse:

• transfers under which the decedent retained possession, enjoyment, or income;
• transfers subject at death to the decedent's power to revoke or consume, invade, or dispose of principal for personal benefit;
• property held by the decedent and another with survivorship rights; and
• transfers within two years before death, to the extent aggregate transfers to one donee in either year exceed $3,000.

A transfer made with the spouse's written consent or joinder is excluded. Life insurance, accident insurance, a joint annuity, or a pension payable to someone other than the spouse is also excluded.

Spouse-derived property, credits, and valuation

The augmented estate also includes property the spouse owns at or because of death, to the extent derived from the decedent outside testate or intestate succession, and analogous property the spouse transferred during marriage without full consideration. Property owned or previously transferred by the spouse is presumed derived from the decedent unless an interested party proves another source.

The statute's derived-property list reaches lifetime trusts created by the decedent, appointed property, insurance attributable to premiums paid by the decedent, annuity and pension-type benefits, out-of-state community-property rights, and dower or curtesy. Federal Social Security is excluded from the pension provision, and income earned before death on included property is not treated as derived property.

Spouse-owned derived property is valued at death. Property the spouse transferred is valued when the transfer became irrevocable or at death, whichever occurred first. A life estate or trust life interest is valued at one-half of the affected property or trust value.

Deadline, complaint, notice, and withdrawal

The election requires a complaint in Superior Court within six months after appointment of the personal representative. A good-cause extension must be requested before the six-month period expires. The extension proceeding requires notice to interested persons and to distributees and augmented-estate recipients whose interests would be adversely affected.

The spouse must give notice of the hearing's time and place to those same categories. The demand may be withdrawn at any time before entry of final judgment.

Waiver and satisfaction

The right may be waived wholly or partly before or after marriage by a written contract, agreement, or waiver signed after fair disclosure. Unless the writing says otherwise, an “all rights” waiver or the specified complete property settlement waives the elective share and renounces intestate benefits and benefits under a will executed before the waiver or settlement.

Satisfaction is unusually broad. The statute first applies all property the spouse owns at death from whatever source, plus property received because of the decedent's death even if the spouse renounced it. It next applies the spouse-transferred property described in § 3B:8-6(b). Any balance is apportioned among augmented-estate recipients in proportion to their interests.

Original transferees or appointees of the decedent and their donees are subject to contribution; a donee is reached only to the extent the donee still has the property or proceeds. A liable person may return the transferred property or pay its statutory value.

What trips people up

• The spouse's independent property is a payment credit. Section 3B:8-18 applies property from every source, even though § 3B:8-6's augmented-estate inclusion focuses on property derived from the decedent.
• The eligibility rule changed in 2023. Do not use the former blanket living-separate-and-apart language; apply current § 3B:8-1 and the detailed § 3B:5-3(d) categories.
• The extension request has its own deadline. Good cause does not permit a request first made after the six-month election period expires.
• A power of attorney is not the guardian route. The elective-share chapter authorizes personal lifetime exercise and a court-ordered guardian election, not an unrestricted agent filing.

Common questions

Does a revocable trust count? A transfer is added to the augmented estate to the extent the decedent retained at death a power to revoke or to consume, invade, or dispose of principal for personal benefit.

Does life insurance always count? No. Insurance payable to someone other than the spouse is expressly excluded. Insurance attributable to premiums paid by the decedent can be spouse-derived property when the spouse receives it.

Can the spouse keep will gifts and still elect? The chapter does not use an automatic-forfeiture formula. Property received because of death is applied toward satisfaction of the share, even if it has been renounced.

Statutes and sources

• N.J.S.A. 3B:8-1 and 3B:5-3(d) — one-third share and current eligibility exclusions. Official P.L.2023, c.238 PDF (accessed 2026-08-02).
• N.J.S.A. 3B:8-3 and 3B:8-5 — net estate, decedent transfers, and exclusions. Official P.L.2005, c.331 PDF (accessed 2026-08-02).
• N.J.S.A. 3B:8-6 to 3B:8-9 — spouse-derived property, included benefits, valuation, and presumption. Official P.L.2005, c.331 PDF (accessed 2026-08-02).
• N.J.S.A. 3B:8-10 — waiver and default effect of broad language. Official P.L.2005, c.331 PDF (accessed 2026-08-02).
• N.J.S.A. 3B:8-11 to 3B:8-14 — lifetime exercise, guardian order, complaint, deadline, extension, notice, and withdrawal. Official P.L.2005, c.331 PDF (accessed 2026-08-02).
• N.J.S.A. 3B:8-17 to 3B:8-19 — life-interest valuation, spouse-property credits, apportionment, and contribution. Official P.L.2005, c.331 PDF (accessed 2026-08-02).