Law Lessons from In the Matter of the Estate of Peck, __ N.J. Super. __ (Ch. Div. 2013), Sussex County, Docket No. P-825-12, Gannon, J.S.C., JANUARY 24, 2013:
The language of the New Jersey elective share statute specifically states what property is to be included and excluded from the augmented estate. N.J.S.A. 3B:8-3(a) provides:
The “augmented estate” means the estate reduced by funeral and administration expenses, and enforceable claims, to which is added the value of property transferred by the decedent at any time during marriage, or during a domestic partnership, to or for the benefit of any person other than the surviving spouse or domestic partner, to the extent that the decedent did not receive adequate and full consideration in money or money’s worth for the transfer, if the transfer is of any of the following types:
a. Any transfer made after May 28, 1980, under which the decedent retained at the time of his death the possession or enjoyment of, or right to income from, the property.
It is of no significance that the property is located in a foreign country, as the augmented estate “includes out of state real property to the same extent as it would be included if it were located in New Jersey.” In re Estate of Cole, 200 N.J. Super. 396, 402 (Ch. Div. 1984) (citing N.J.S.A. 3B:8-2).
However, N.J.S.A. 3B:8-5 excludes transfers made with the written consent or joinder of the surviving spouse, life and accident insurance, joint annuities or pensions payable to another.
The elective share statute was enacted to “prohibit disinheritance of a surviving spouse who needs continuous support.” McKay v. Estate of McKay, 184 N.J. Super. 217, 224 (Law Div. 1982) (citing N.J.S.A. 3A:38-1, the predecessor to N.J.S.A. 3B:8-1 to -19). The elective share statute has nothing to do with carrying out the decedent’s actual intent. In fact, the statute may be utilized to circumvent the actual intent to disinherit a surviving spouse.
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