New Jersey Surviving Spouse Rights

New Jersey lets a surviving spouse, partner in a civil union, or domestic partner take one-third of the augmented estate instead of what the will leaves. N.J.S.A. 3B:8-1 creates that right when the decedent died domiciled in New Jersey. N.J.S.A. 3B:8-12 then gives the survivor six months from the appointment of a personal representative to file the complaint.

That one-third is flat. It does not climb to one-half when the couple had no children, and it does not fall when they did. New Jersey also has no homestead allowance and no allowance for support during administration. The only estate set-aside is the $5,000 family exemption plus wearing apparel under N.J.S.A. 3B:16-5, and a will can displace it.

Read this page beside the New Jersey intestate succession guide, which covers what a survivor takes when there is no will, and the New Jersey will requirements guide. The New Jersey probate guide walks the Surrogate route, and the New Jersey County Surrogate directory lists the office in each of the 21 counties.

Three Rights, Three Separate Statutes

New Jersey spreads a survivor's protection across three provisions that do different jobs:

1. Elective share, N.J.S.A. 3B:8-1. One-third of the augmented estate. This is the remedy against a will, and the survivor has to claim it.
2. Intestate share, N.J.S.A. 3B:5-3. What the survivor takes when the decedent left no will. Nobody elects anything here. The statute distributes.
3. Family exemption, N.J.S.A. 3B:16-5. Wearing apparel plus personal property to the value of $5,000, reserved to and for the use of the family against all creditors and before any distribution.

The forum matters as much as the right. The County Surrogate admits an uncontested will and appoints the executor or administrator. An elective share is not a Surrogate matter. N.J.S.A. 3B:8-12 sends it to the Superior Court by complaint, and Rule 4:82 of the Rules of Court separately bars the Surrogate's Court from acting in any matter where a dispute arises before it, or that the Surrogate certifies to be of doubt or difficulty, unless the Superior Court authorizes it. The Surrogate's office still holds the date letters issued, and that date is what starts the six-month period, but a Superior Court judge decides the claim.

The Elective Share Is One-Third of the Augmented Estate

N.J.S.A. 3B:8-1 says that if a married person, partner in a civil union, or person in a domestic partnership dies domiciled in this State, the survivor has a right of election to take an elective share of one-third of the augmented estate. P.L.2023, c.238, s.4 amended the section to name a partner in a civil union alongside a spouse and a domestic partner.

Domicile controls. When the decedent lived somewhere else and died owning New Jersey property, N.J.S.A. 3B:8-2 hands the question to the law of the decedent's domicile at death rather than to New Jersey's one-third rule.

What the Augmented Estate Reaches

The fraction only means something once you know what it applies to. N.J.S.A. 3B:8-3 defines the augmented estate as the estate reduced by funeral and administration expenses and by enforceable claims, plus the value of property the decedent transferred at any time during marriage or during a domestic partnership to or for the benefit of any person other than the survivor, to the extent the decedent did not receive adequate and full consideration in money or money's worth. Four transfer types count, and all four are limited to transfers made after May 28, 1980:

• Transfers where the decedent kept possession, enjoyment, or the right to income from the property at death
• Transfers where the decedent kept a power, alone or with another person, to revoke, consume, invade, or dispose of the principal for the decedent's own benefit
• Property held at the decedent's death by the decedent and another person with a right of survivorship
• Transfers made within two years of death, to the extent the aggregate transfers to any one donee in either of those years exceed $3,000

Timing rules follow in N.J.S.A. 3B:8-4. Property is valued as of the decedent's death, except that property given irrevocably during life is valued as of the date the donee came into possession or enjoyment of it if that date comes first.

Two Carve-Outs Most Summaries Skip

N.J.S.A. 3B:8-5 pulls two categories back out. First, any transfer of property made with the written consent or joinder of the survivor. Second, and this is the one that catches families off guard: life insurance, accident insurance, a joint annuity, or a pension payable to a person other than the surviving spouse or domestic partner. A New Jersey decedent who named a child or a friend on a policy moved that money outside the elective-share pool. Beneficiary designations shape the calculation, and a large death benefit does not necessarily sit inside it.

Property the Survivor Already Holds Comes Back In

N.J.S.A. 3B:8-6 adds two more categories. One is property the survivor owns at the time of the decedent's death, or comes to own because of that death, where it came from the decedent by some route other than testate or intestate succession and without full consideration in money or money's worth. The other is that same kind of property after the survivor gave it away without full consideration to someone other than the decedent, and only where it would have been includable in the survivor's own augmented estate had the survivor died first. Income earned by included property before the death does not count as derived from the decedent.

N.J.S.A. 3B:8-7 lists what counts as derived from the decedent, and the list runs long: a survivor's beneficial interest in a trust the decedent created during life, property the decedent appointed to the survivor by exercising a general or special power of appointment that was also exercisable in favor of people other than the survivor, insurance proceeds including accidental death benefits attributable to premiums the decedent paid, any lump sum immediately payable and the commuted value of annuity-contract proceeds where the decedent was the annuitant the contract ran on rather than a contingent one, the commuted value of pension, disability compensation, death benefit, or retirement plan amounts (the federal Social Security system is carved out), a community-property share acquired in another state, and the value of any rights of dower and curtesy. One closing sentence catches people who assume employer money is outside the family: premiums paid by the decedent's employer, the decedent's partner, a partnership the decedent belonged to, or the decedent's creditors are deemed to have been paid by the decedent.

N.J.S.A. 3B:8-8 then dates the valuations. Property the survivor owns at the decedent's death is valued as of the date of death. Property the survivor transferred away is valued at the time that transfer became irrevocable, or at the decedent's death, whichever comes first.

Then comes the rule that shifts the paperwork onto the survivor. Under N.J.S.A. 3B:8-9, property the survivor owns as of the decedent's death, or previously transferred away, is presumed to have been derived from the decedent unless a party in interest establishes that it came from another source. Records of source carry weight here. Money a survivor inherited from their own parents, or a house bought before the marriage, stays out of the calculation only where a party in interest establishes the other source.

The Election Tops You Up Rather Than Stacking On Top

N.J.S.A. 3B:8-18 controls how the one-third gets satisfied, and it works in three steps:

1. Apply the value of all property the survivor owned in their own right at the decedent's death, from whatever source acquired, plus anything the survivor succeeded to because of the death. Renouncing a gift does not remove it. The statute still counts property the survivor succeeded to even where the survivor has renounced it.
2. Apply the value of the property described in N.J.S.A. 3B:8-6(b), meaning the property the survivor received from the decedent and then gave away.
3. Apportion liability for the balance equitably among the recipients of the augmented estate, in proportion to the value of their interests.

Two more sections shape the number. N.J.S.A. 3B:8-17 values the electing survivor's total or proportional beneficial interest in any life estate in real or personal property, or in any trust, at one-half of the total value of the property or trust subject to the life estate, so a life-estate bequest is not credited at face value. N.J.S.A. 3B:8-19 limits who has to chip in: only original transferees or appointees of the decedent, and their donees to the extent those donees still hold the property or its proceeds. A person liable to contribute may hand back the property instead of paying its value, and the value they pay instead is fixed the way N.J.S.A. 3B:8-4 fixes it.

A Worked Illustration

Say the augmented estate comes to $600,000 once funeral and administration expenses and enforceable claims come off, and the survivor already owns or receives $150,000 that counts under N.J.S.A. 3B:8-18.

• One-third of $600,000 is $200,000.
• The $150,000 is applied first.
• The remaining $50,000 comes from the rest of the augmented estate, apportioned among the recipients under N.J.S.A. 3B:8-18(c).

Real figures depend on the full augmented-estate accounting, and N.J.S.A. 3B:8-15 leaves the amount for the court to fix. Treat this as the shape of the calculation rather than a computation of anyone's claim.

When the Right Does Not Exist

Two filters in N.J.S.A. 3B:8-1 close the door.

The first sits in subsection a. There is no right of election if either the decedent or the survivor had filed a complaint, not dismissed under R. 4:6-2 of the Rules of Court, for divorce, dissolution of civil union, termination of domestic partnership, or divorce from bed and board.

The second sits in subsection b, which excludes the individuals described in N.J.S.A. 3B:5-3(d). That subsection covers four situations:

1. A person who filed, or had filed against them, one of those complaints, where the complaint was not dismissed under R. 4:6-2
2. A person who entered a validly executed equitable distribution cut-off agreement or termination agreement whose underlying subject is one of those actions
3. A person who at the decedent's death had both ceased to cohabit with the decedent under circumstances that would have given rise to a cause of action for divorce or nullity of marriage, and, through written agreement, affirmative acts, or both, had divided assets in a way equivalent to equitable distribution
4. A person who at the decedent's death had entered a validly executed marital settlement agreement whose underlying subject is one of those actions

Read the third one twice. Separation on its own does not end the elective share. New Jersey pairs the ceased cohabitation with a division of assets equivalent to equitable distribution. P.L.2023, c.238 wrote both N.J.S.A. 3B:5-3 and N.J.S.A. 3B:8-1 into their current shape, so check any older summary of this test against the sections as they read today.

Waiver

A survivor can also give the right away. N.J.S.A. 3B:8-10 allows a waiver, whole or partial, before or after marriage, by written contract, agreement, or waiver signed by the party waiving after fair disclosure. The statute then goes further. Unless the document says otherwise, a waiver of all rights in the other party's property, or a complete property settlement entered into after or in anticipation of separation, divorce, or termination of a domestic partnership, waives the elective share and renounces every benefit that would otherwise pass by intestate succession or under any will executed before the waiver. What a particular prenuptial agreement or settlement actually waives is a question of its wording, and reading it is work for a licensed New Jersey attorney.

Who May Exercise It

The right belongs to the survivor personally. N.J.S.A. 3B:8-11 says it may be exercised only during the survivor's lifetime. When a court has appointed a guardian to manage the survivor's estate, only the appointing court may authorize the election, and only after finding that the election is needed for the survivor's adequate support over their probable life expectancy. For anyone who may have to act on behalf of a spouse or partner, the New Jersey power of attorney guide covers what an agent can and cannot do.

The Six-Month Clock

N.J.S.A. 3B:8-12 sets the deadline. The survivor elects by filing a complaint in the Superior Court within six months after the appointment of a personal representative of the decedent's estate. Watch where that clock starts. It runs from appointment, not from the date of death, so an estate nobody has opened has not yet started the survivor's six months.

Extensions exist, and they are narrow. The court may extend the time on good cause shown by the survivor, but only before the time for election has expired, and only on notice to persons interested in the estate and to distributees and recipients of portions of the augmented estate whose interests the election would hurt. An application made after the period has run has nothing left to extend. The New Jersey probate timeline shows where this deadline lands next to the nine-month creditor bar.

Four related steps follow:

• Notice of hearing. Under N.J.S.A. 3B:8-13, the survivor gives notice of the time and place set for hearing to persons interested in the estate and to the recipients whose interests the election would hurt.
• Withdrawal. Under N.J.S.A. 3B:8-14, the survivor may withdraw the demand at any time before the court enters final judgment.
• The judgment. Under N.J.S.A. 3B:8-15, the court determines the amount and orders payment from the assets of the augmented estate or by contribution. It can also fix the liability of a person holding property that never reached the personal representative or that has already been distributed. The same section lets the case run against fewer than all the people who could be made to contribute, while capping each one at what they would have owed if everyone had been brought in.
• Enforcement. Under N.J.S.A. 3B:8-16, a judgment fixing the elective share is enforced the way other judgments are enforced.

The $5,000 Family Exemption

New Jersey's only estate set-aside is short and old. N.J.S.A. 3B:16-5 reserves the wearing apparel of a person who dies leaving a family residing in New Jersey, plus personal property to the value of $5,000, to and for the use of the family against all creditors and before any distribution. A person who lived in New Jersey at death and left a surviving widow or child who resided in the family at that time is deemed to have left a family entitled to the benefit.

Read that sentence as the statute writes it. The whole of chapter 3B:16 still says "widow" and "his family," because the wording comes from the 1981 act that took effect May 1, 1982 and no later session law has modernized it. The Legislature updated the elective share twice, in 2005 for domestic partners and in 2023 for civil union partners, and left the family exemption alone. So the section does not spell out how it treats a surviving husband, a civil union partner, or a domestic partner. That gap is not something the statutory text resolves on its own, and how it applies to a particular household is a question for a licensed New Jersey attorney.

One limit changes the answer for most estates that have a will. The same section says that it, N.J.S.A. 3B:16-3, and N.J.S.A. 3B:16-7 may not be permitted to conflict with the will of the decedent. A New Jersey will can displace the exemption, which is the reverse of how exempt property works in Uniform Probate Code states.

Claiming it costs something. N.J.S.A. 3B:16-2 makes an inventory and appraisal mandatory when the exemption is to be set off, and requires it within three months of the grant of letters. Absent that, no inventory has to be filed until three months after letters and often none is required at all. N.J.S.A. 3B:16-3 has the personal representative apply to the Surrogate of the county where the decedent resided, or to the Superior Court, for two appraisers who are neither interested in the estate nor related to the decedent's widow or child, and those appraisers swear to value the property at its true and intrinsic value without reference to what it might bring at a public sale. The widow or the personal representative then selects $5,000 of personal property from the completed inventory under N.J.S.A. 3B:16-7, and N.J.S.A. 3B:16-6 requires that list to be verified by oath and filed with the inventory. N.J.S.A. 22A:2-30 charges $25 for the appointment of appraisers, another $25 to file an inventory and appraisement of one page, and $5 for each additional page. Those steps and charges sit against a set-aside capped at $5,000.

New Jersey has no homestead allowance and no maintenance allowance during administration. The New Jersey debt payment priority guide shows where the exemption sits against creditor claims.

Intestate Share Versus Elective Share

The elective share answers a will. When there is no will, N.J.S.A. 3B:5-3 distributes instead, and it treats a spouse, a partner in a civil union, and a domestic partner the same way. The survivor takes the entire intestate estate when no descendant and no parent survives, and also when every surviving descendant of the decedent is also a descendant of the survivor and the survivor has no other descendant. Otherwise the survivor takes the first 25% of the intestate estate, no less than $50,000 and no more than $200,000, plus three-fourths of any balance when a parent survives and no descendant does, or plus one-half of the balance in the two blended-family cases. The New Jersey intestate succession guide works through each branch.

New Jersey Inheritance Tax Treats the Survivor as Class A

Nothing the survivor receives from a New Jersey decedent carries a state death tax. N.J.S.A. 54:38-1 subsection a.(4), as amended by P.L.2016, c.57, removed the estate tax for the transfer of the estate of every resident decedent dying on or after January 1, 2018. The Transfer Inheritance Tax survives, and it taxes by relationship rather than by size of estate. The Division of Taxation puts a spouse, a civil union partner (after February 19, 2007), and a domestic partner (after July 10, 2004) in Class A, and it states the result plainly: no tax is due.

Check which paragraph of the statute you are reading before you quote a date. N.J.S.A. 54:34-2 sets a separate rate schedule for each class. Paragraph a.(1), the paragraph covering a transfer to a husband or wife or to a domestic partner, ends with the sentence that settles the spousal question: for transfers made on or after January 1, 1985 there shall be no tax imposed under this paragraph. The July 1, 1988 no-tax sentence that gets quoted around the web closes paragraph a.(2) instead, which covers a parent, grandparent, child, or the issue of a child. Both dates are long past and both classes come out at zero, so the answer for a survivor does not change. The citation does.

A waiver can still hold up a bank or a title transfer even when no tax is due, so ask the institutions holding the assets what they need before you plan around a date. The New Jersey selling inherited property guide covers the real-property side.

What Shapes a New Jersey Elective-Share Analysis

The statutes put a handful of facts at the center of every elective-share question. The list below describes what that analysis generally rests on. It is not a set of steps for any particular reader, and none of it substitutes for a licensed New Jersey attorney's read of a specific estate.

1. Whether a personal representative has been appointed, and when. That date, held by the County Surrogate, starts the six-month period in N.J.S.A. 3B:8-12. An estate nobody has opened has not started it.
2. What the will actually gives the survivor. The two paths cannot be compared until the will and the estate paperwork are in view.
3. What the survivor already owns or receives. N.J.S.A. 3B:8-18 applies it against the one-third, so a joint account or a payable-on-death designation naming the survivor reduces what an election adds.
4. The beneficiary designations. Life insurance, accident insurance, a joint annuity, or a pension payable to someone else drops out of the augmented estate under N.J.S.A. 3B:8-5.
5. Proof of source for property that did not come from the decedent. N.J.S.A. 3B:8-9 presumes the opposite until a party in interest establishes otherwise.
6. Any prenuptial agreement or property settlement. N.J.S.A. 3B:8-10 can turn a waiver of all rights into a waiver of the elective share and of will and intestate benefits together.
7. The family exemption, which is a separate question. It runs on a different statute with a different trigger, and setting it off starts a three-month inventory obligation under N.J.S.A. 3B:16-2.
8. The timing of any extension application. N.J.S.A. 3B:8-12 lets the court extend the time only on an application made before the six months run out.

Common Questions

How much is the elective share in New Jersey?

One-third of the augmented estate, under N.J.S.A. 3B:8-1. The fraction does not change with whether the decedent left descendants, and New Jersey has no one-half version of the share. What the survivor already owns or receives is then applied against that one-third under N.J.S.A. 3B:8-18, so the election tops the survivor up to the fraction rather than adding to it.

Who can claim a New Jersey elective share?

A surviving spouse, a partner in a civil union, or a domestic partner of a decedent who died domiciled in New Jersey. P.L.2023, c.238, s.4 amended N.J.S.A. 3B:8-1 to name all three. When the decedent died domiciled somewhere else, N.J.S.A. 3B:8-2 sends the question to the law of that domicile even for property sitting in New Jersey.

How long does a New Jersey surviving spouse have to elect?

Six months after the appointment of a personal representative, by complaint filed in the Superior Court under N.J.S.A. 3B:8-12. The clock runs from appointment, not from the date of death. The court may extend the time for good cause, but only on an application made before the six months expire, and with notice to interested persons and to recipients of portions of the augmented estate.

Does the New Jersey augmented estate include life insurance and joint accounts?

They are treated differently. Property held at the decedent's death by the decedent and another person with a right of survivorship is added to the augmented estate under N.J.S.A. 3B:8-3. Life insurance, accident insurance, a joint annuity, or a pension payable to a person other than the surviving spouse or domestic partner is excluded under N.J.S.A. 3B:8-5.

Can a New Jersey spouse be cut out of a will completely?

Not while the marriage, civil union, or domestic partnership stands and no divorce or dissolution complaint has been filed. The survivor can elect one-third of the augmented estate under N.J.S.A. 3B:8-1 whatever the will says. The right disappears for the individuals described in N.J.S.A. 3B:5-3(d), and it can be waived in writing after fair disclosure under N.J.S.A. 3B:8-10.

Does New Jersey have a family allowance for a surviving spouse?

No. New Jersey has no homestead allowance and no maintenance allowance during administration. The only estate set-aside is the family exemption in N.J.S.A. 3B:16-5: wearing apparel plus personal property to the value of $5,000, reserved for the family against all creditors and before any distribution. That exemption may not conflict with the decedent's will.

Related New Jersey Guides

• New Jersey Intestate Succession
• New Jersey Will Requirements
• New Jersey Debt Payment Priority
• New Jersey Executor Duties
• New Jersey Probate Guide
• How to Avoid Probate in New Jersey
• New Jersey County Surrogate Directory

This guide is general information about New Jersey estates. It is not legal advice. Confirm anything that affects your estate with your County Surrogate, the New Jersey Division of Taxation, or a licensed New Jersey attorney.

Sources:

• Title: P.L.2023, c.238 (A2351 2R), An Act concerning equitable distribution and amending various sections of the New Jersey Statutes, sections 1, 4 and 5, which set the current wording of N.J.S.3B:5-3 (including subsection d.), N.J.S.3B:8-1 and N.J.S.3B:8-2. Publisher: New Jersey Legislature. Publication Date: Approved January 8, 2024. URL: https://pub.njleg.gov/bills/2022/PL23/238_.HTM
• Title: P.L.2005, c.331 (S2083 1R), An Act concerning rights of surviving domestic partners and amending various sections of the statutory law, sections 9 through 22, which set the current wording of N.J.S.3B:8-3 and N.J.S.3B:8-5 through N.J.S.3B:8-12 and N.J.S.3B:8-17 through N.J.S.3B:8-19. Publisher: New Jersey Legislature. Publication Date: Approved January 12, 2006. URL: https://pub.njleg.gov/bills/2004/PL05/331_.HTM
• Title: N.J.S.A. 3B:8-4, 3B:8-15, 3B:8-16, 3B:16-2, 3B:16-3, 3B:16-5, 3B:16-6 and 3B:16-7, valuing property transferred; fixing and payment of the elective share; enforcing judgment; inventory and appraisal to be made and filed; appointment of appraisers; exemption for benefit of decedent's family; proof of inventory and exempt list; selection of property to be exempted. These eight sections carry only their original source note, L.1981, c.405, effective May 1, 1982, which predates the Legislature's online session-law archive, so the official full text was read in the Legislature's statutes publication. Publisher: New Jersey Legislature, Office of Legislative Services. Publication Date: New Jersey General and Permanent Statutes, updated through P.L.2025, c.346, and J.R.22, read July 30, 2026. URL: https://lis.njleg.state.nj.us/nxt/gateway.dll/statutes/1?f=templates&fn=default.htm&vid=Publish:10.1048/Enu
• Title: P.L.2005, c.370 (A2869 ACS), An Act concerning guardianship for elderly or other incapacitated adults, amending N.J.S.3B:12-25 and N.J.S.22A:2-30, section 14 being the most recent amendment to the surrogate fee schedule that charges $25 for the appointment of appraisers, $25 to file a one-page inventory and appraisement, and $5 for each additional page. Publisher: New Jersey Legislature. Publication Date: Approved January 12, 2006. URL: https://pub.njleg.gov/bills/2004/PL05/370_.HTM
• Title: P.L.2016, c.57 (A12 2R), An Act adjusting certain State taxes, which amended N.J.S.A. 54:38-1 subsection a. to add paragraph (4): for the transfer of the estate of each resident decedent dying on or after January 1, 2018, there shall be no tax imposed. Publisher: New Jersey Legislature. Publication Date: Not listed in the published chapter text. URL: https://pub.njleg.gov/bills/2016/PL16/57_.HTM
• Title: P.L.2003, c.246 (A3743 2R), the Domestic Partnership Act, cited by the source note to N.J.S.A. 54:34-2 (transfer inheritance tax; phase-out) as its most recent amendment at section 37; paragraph a.(1) of that section covers a transfer to a husband or wife or a domestic partner and ends: for transfers made on or after January 1, 1985 there shall be no tax imposed under this paragraph. Publisher: New Jersey Legislature. Publication Date: Not listed in the published chapter text. URL: https://pub.njleg.gov/bills/2002/PL03/246_.HTM
• Title: Inheritance Tax Rates, stating Class A: No tax is due. Publisher: New Jersey Department of the Treasury, Division of Taxation. Publication Date: Last updated April 22, 2025. URL: https://www.nj.gov/treasury/taxation/inheritance-estate/tax-rates.shtml
• Title: Inheritance Tax Beneficiary Classes, listing Spouse, Civil union partner (after 2/19/2007) and Domestic partner (after 7/10/2004) in Class A. Publisher: New Jersey Department of the Treasury, Division of Taxation. Publication Date: Not listed. URL: https://www.nj.gov/treasury/taxation/pdf/other_forms/inheritance/transferinheritanceclasses.pdf
• Title: Inheritance and Estate Tax. Publisher: New Jersey Department of the Treasury, Division of Taxation. Publication Date: Last updated September 9, 2025. URL: https://www.nj.gov/treasury/taxation/inheritance-estate/inheritance.shtml
• Title: Rule 4:82, Matters In Which The Surrogate's Court May Not Act. Publisher: New Jersey Courts, Rules of Court. Publication Date: Includes amendments effective on or before June 1, 2026; rule last amended July 27, 2006, effective September 1, 2006. URL: https://www.njcourts.gov/attorneys/rules-of-court/482-matters-which-surrogates-court-may-not-act
• Title: County Surrogate, glossary definition of the elected Constitutional Officer who serves as judge of the Surrogate's Court for uncontested probate and estate matters. Publisher: New Jersey Courts. Publication Date: Not listed. URL: https://www.njcourts.gov/glossary/county-surrogate
• Title: New Jersey Surrogates Roster. Publisher: New Jersey Courts. Publication Date: Current directory of the 21 County Surrogates, accessed July 30, 2026. URL: https://www.njcourts.gov/public/directories/court-services/county-surrogates

It is not legal advice.