Negating the State's Position that Disinheritance is a Transfer by a Nursing Home Resident

In Post 60, I pointed out the State's position that disinheritance be treated as a transfer of one-third the augmented estate (i.e. the elective share).

Notwithstanding pursuant to N.J.S.A. 3B: 8-1, a surviving spouse or domestic partner does not have a right of election if the decedent and the surviving spouse or domestic partner (i.e. nursing home resident) had been living separate and apart in different habitations or ceased to cohabit as man and wife, as a result of a judgment of divorce from bed and board or circumstances which would give rise to a cause of action for divorce or nullity of the marriage prior to the date of death of the decedent. In my prior posts, I pointed out that the state violates federal pre-emption in treating a disinheritance as a transfer, on the theory that the elective share is an option and not an affirmative act (i.e. a transfer). Moreover, pursuant to the statute, the elective share does not apply if the decedent and the surviving spouse or domestic partner (i.e. nursing home resident) had been living separate and apart in different habitations or had ceased to cohabit as man and wife.

Therefore, if there is no elective share based upon the definition in N.J.S.A. 3B: 8-1, the state's argument that disinheritance is a transfer is completely negated.

N.J.S.A. 3B: 8-2 provides that the right of a surviving spouse or domestic partner (i.e. nursing home resident) to take an elective share of property in New Jersey is governed by the law of the decedent's domicile at date of death.

The meaning of "augmented estate" is set forth in N.J.S.A. 3B: 8-3 through 3B: 8-18.

Specific reference is made to N.J.S.A. 3B: 8-12 which gives the surviving spouse or domestic partner an election to take his elective share in the augmented estate by filing a complaint in the Superior Court within 6 months after the appointment of the personal representative of the estate. That is, as Post 137 indicates, the right to take the elective share is not an affirmative act but the surviving spouse or the domestic partner may elect to take the elective share. This statute indicates that the 6 month period may be extended for "good cause shown" by the surviving spouse or domestic partner.

Disclaimer: This article does not constitute legal advice and each person may have unique facts for which legal consultation may be necessary.

© November 2011, Post 169