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Can I get more from my spouse’s estate if the will limits my inheritance?

| Mar 31, 2021 | Estate Litigation |

Losing your spouse is traumatizing and often changes your whole life. Finding out after the death that your spouse did not adequately provide for you in his or her will can be devastating.

Regardless of the reason behind the decision, you may wonder if it is possible to get more than what your spouse left you in his or her will. NJ.com points you to the elective share statute.

The statute

The elective share statute says that as the spouse, the law automatically entitles you to a one-third portion of the estate. If the will does not appoint you the amount the statute allows, you can evoke elective share and collect the amount due to you under this law.

Exceptions

There are exceptions to this statute. First, you have to make your claim within six months of the executor appointment. Second, you must have been living with your spouse as partners at the time of his or her death.

Lastly, if you already get assets worth one-third of the estate, you cannot get more by using this law.

There is another exception if you were not in a marriage with the person due to a previous divorce. In this case, the divorce does not impact your ability to collect under the statute if you and the person were living as partners at the time of death.

So, if you got a divorce years ago, but still lived as if your marriage was valid, then the elective share statute will qualify you as a spouse with the right to collect your fair share of the estate.

It is important for you to understand this statute, not only so you can collect from an estate but also so you can protect your own estate.