You Cannot Write a Spouse Out of Your Will

There is an understanding in this world that some marriages are happy and some are unhappy. Those that are happy normally do not attempt to exclude a spouse from a Will. However, in unhappy marriages or where people want their children to inherit everything, spouses attempt to write out their partner from the Will. This is a belief that that is a fallacy as in the State of New Jersey there is what is called “The Elective Share” or “The Forced Share.”

 

In all jurisdictions across the country, it is prohibited for deceased spouses to completely disinherit their surviving husband or wife. Marriage was seen as implementing an obligation upon the spouses to support each other. With this understanding in mind, states passed “Elective Share” statutes to protect a husband or wife and provide them with the right to receive a share of their deceased spouse’s estate. In many states, the Elective Share is one-third of the deceased spouse’s estate.

 

In the 21st century, the thought of marriage has changed to the “Partnership Theory.” Under this view, the surviving spouse is entitled to a share of the estate which is more likely linked to the contributions during the marriage.

 

There are two ways to calculate the “Elective Share.” The first is under the 1969 UPC. This is a simple mathematical calculation which is the spouse is entitled to one-third share of the deceased spouse’s estate rather than the property devised by will. The 1969 UPC included four (4) kinds of property: 1) decedent’s net probate estate; 2) certain non-probate transfers to third parties made during marriage that are essentially Will substitutes; 3) significant outright gifts made by the decedent to third parties within two years of death; and 4) surviving spouse’s own property, but only to the extent that the property was derived by gift or non-probate transfer. Therefore, the augmented estate is the aggregate value of these categories of property. The “Elective Share” is one-third of the augmented estate.

 

Upon calculating one-third of the augmented estate, now there is a calculation to satisfy the surviving spouse’s elective share. Step one is to deduct the surviving spouse for property received from the augmented estate. This reduces the total “Elective Share” to be paid to the surviving spouse. Then if there is still an outstanding balance owed to the surviving spouse, one looks to the property conveyed by the decedent for other beneficiaries. One reduces the shares of the other beneficiaries in proportion to the value of the intended receipt from the decedent.

 

The UPC was altered in 1990 to bring it more up to date with the partnership theory of marriage. The 1990 UPC increased the “Elective Share” from one-third to one-half of the augmented estate. The 1990 UPC also took into account two (2) other variables not factored into the 1969 UPC: 1) the length of the marriage; and 2) the separate property of the surviving spouse. Furthermore, the 1990 UPC protected the surviving spouse with a safety net in what is known as the “supplemental elective share.” If the surviving spouse’s post-estate assets fall below $75,000; the supplemental elective share is equal to the amount necessary to bring the surviving spouse’s assets to the minimum of $75,000.

 

If a couple is married for one and a half years, the marital-property portion is 6% of the augmented estate. If the couple has been married for ten years, the marital-property portion is 60% of the augmented estate. If the length of the marriage is fifteen years or more, the marital property portion is 100% of the augmented estate.

 

Therefore, one takes the amount of the augmented estate and multiplies it by the percentage of the marital-property portion. Then finally to calculate the surviving spouse’s elective share, one divides the marital-property portion of the augmented estate in half.

 

To illustrate this calculation, imagine that Frank and Marie are married for twelve (12) years, this means the marital-property portion is 76%. The augmented estate is valued at one-million dollars ($1,000,000). We take the $1,000,000 and multiply that by 76% which gives $760,000. Now divide the $760,000 in half and Marie’s elective share would be $380,000.

 

In reality, there is no way to write-out a spouse from your Will. At Campanile Law, we take the time to show you how your estate would break down with writing a spouse in the Will and attempting to write-out your spouse. We pride ourselves on the time we take to spend with our clients and work with our clients to achieve their ultimate goals.

 

If you want to begin your Legacy Planning Journey today please contact Campanile Law at info@campanilelaw.com or via phone at (201)-485-6045.