Can I leave my wife out of my Will?

A surviving spouse may inherit from his deceased spouse’s estate even if there is a Will that leaves nothing to the surviving spouse. New Jersey laws enables a surviving spouse to inherit from his deceased spouse’s estate under the theory of the ‘elective share’ or the ‘omitted spouse share.’


Elective Share
Under New Jersey law, the surviving spouse is entitled to receive an elective share equal to one third of the deceased spouse’s augmented estate. The augmented estate is generally the deceased spouse’s probate estate including all assets passing under the decedent’s Will. The augmented estate also includes certain assets that the deceased spouse transferred during his lifetime if the deceased spouse had maintained some type of control over these assets. The augmented estate also includes certain transfers made within two years of the death of the decedent.

The augmented estate is reduced by funeral and administrative expenses as well as other enforceable claims that are made against the deceased’s estate.

The elective share is not automatic. Several conditions must be satisfied for a spouse to claim the elective share. These include:
(1) The husband and wife must be living together as spouses when a spouse passes away;
(2) The surviving spouse will need to timely file a complaint in court to claim the elective share; and
(3) If a person has property, either acquired independently or inherited from your spouse, that is equal to or in excess of the elective share amount, the elective share is deemed satisfied; a person will not be entitled to anything beyond what is provided under the Will.


Assume John has $300,000 in assets that pass under his Will. The beneficiaries under John’s Will are solely his children (he leaves nothing to his wife). The elective share amount is equal to one-third of the total assets of the estate or $100,000. However, assume that his wife already accumulated $120,000 of her own assets. Since wife has already inherited more than the elective share amount, the wife would not be entitled to the elective share.


Omitted Spouse Share

Assume that prior to marriage, a person writes a Will that makes no provision for a future spouse. Sometime later, this person marries. Next, this person dies. The surviving spouse may be entitled to an intestate share of the deceased spouse’s estate irrespective of how the Will has been written.

Intestate means  that a person died without preparing a Will. Here, New Jersey law would define the manner in which the deceased person’s estate would be distributed. The distribution would depend on whether the deceased had children or living parents.

The omitted spouse will not receive the omitted spouse share if the contents of the Will demonstrate that the omission was intentional or if the deceased spouse explicitly provided for the surviving spouse outside of the Will.



Assume husband and wife get married but never get around to updating their Wills after their marriage. They have no children, and the husband’s parents are deceased. The husband passes away and his Will designates his siblings as sole beneficiaries of his estate. As an omitted spouse, his wife is entitled to the entire estate irrespective of the provisions of the Will.

If the husband’s parents are surviving, the wife will receive the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus 75% of the balance (the parents receive the remaining 25%).

If the husband designates his daughter from a prior marriage as the beneficiary under his Will rather than his siblings, wife will be entitled to the first 25% of the estate but not less than $50,000 nor more than $200,000, plus one-half of the balance (husband’s daughter will receive the rest).

It is possible for either spouse to waive both the elective share and the omitted spouse share.

By admin

This post was written by .

Published .

Posted in: Uncategorized

Leave a Reply