Lindabury, McCormick, Estabrook & Cooper, P.C. Firm News & Events
Will your assets pass to family if you die without a Will in New Jersey? Not necessarily. In some cases, a decedent’s property can actually escheat, or revert, to the State of New Jersey when the decedent has living relatives. The only way to ensure that your property is distributed according to your wishes is to execute a Will. While it may be tempting to let estate planning take a back burner to the hustle and bustle of everyday life, having a Will and other necessary estate planning documents helps your loved ones avoid additional hassles at the time of your passing.
Intestacy laws govern what happens to a person’s assets when he or she dies without a Will. Intestacy laws, however, do not interfere with assets that are jointly owned–those go to the survivor; or assets that are subject to a separate designation of beneficiary–those go to the designated beneficiary. In New Jersey, heirs must survive the decedent by at least 120 hours to inherit. New Jersey has adopted an intestacy system that only considers those relatives in the third branch and closer as “heirs” for the purposes of intestate succession. This is known as a parentelic system. The first branch includes the decedent, his children, grandchildren and great-grandchildren. The second branch includes decedent’s parents, siblings, and nieces and nephews down the line to great-grandnieces and great-grandnephews. The third and final branch of heirs for purposes of the New Jersey intestacy laws consists of the decedent’s grandparents and descendants of grandparents including aunts, uncles, and first cousins.
It is important to note that if a decedent dies without a Will and has a spouse or domestic partner, that spouse or partner may not inherit the full estate. This debunks the common misconception that if you pass without a Will, your spouse will automatically receive everything. The surviving spouse or partner’s share depends on many things including but not limited to whether the couple had children together, whether there are children from a prior marriage, and whether the decedent has parents who are still living.
The following chart summarizes the current New Jersey intestacy laws.
| If Decedent Had: | Distribution Would Go To: |
|---|---|
| Spouse or domestic partner but no descendant or parent of the decedent survives the decedent | The entire intestate estate to spouse or domestic partner. |
| Surviving descendants but no surviving spouse or domestic partner | The descendants inherit the entire estate by representation. |
| Spouse or domestic partner and all of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and there is no other descendant of the surviving spouse or domestic partner who survives the decedent | The entire intestate estate to spouse or domestic partner. |
| Spouse or domestic partner and no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent | Spouse or domestic partner inherits the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus three-fourths of any balance of the intestate estate. Parent(s) inherit the remaining estate. |
| Spouse or domestic partner and all of the decedent’s surviving descendants are also descendants of the surviving spouse or domestic partner and the surviving spouse or domestic partner has one or more surviving descendants who are not descendants of the decedent | Spouse or domestic partner inherits the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate. Decedent’s descendants inherit the remaining estate. |
| Spouse or domestic partner and one or more of the decedent’s surviving descendants is not a descendant of the surviving spouse or domestic partner | Spouse or domestic partner inherits the first 25% of the intestate estate, but not less than $50,000.00 nor more than $200,000.00, plus one-half of the balance of the intestate estate. Decedent’s descendants inherit the remaining estate. |
| No surviving spouse or domestic partner and no surviving descendants, but surviving parent(s) | Parent(s) inherit the entire estate. |
| No surviving spouse or domestic partner, no surviving parents, but surviving sibling(s) | Sibling(s) inherit the entire estate. |
| No surviving spouse or domestic partner, descendant, parent or descendant of parent. Surviving grandparent or descendant of grandparent | One-half to maternal grandparent(s) or grandparents’ descendants, by representation. One-half to paternal grandparent(s) or grandparents’ descendants, by representation. If no grandparent or descendant of grandparent on one side, all to the other side. |
| No surviving spouse or domestic partner, descendant, grandparent, parent or descendant of parent. Surviving descendant(s) of grandparent. | Descendants take equally if they are all of the same degree of kinship, but if unequal degree, those of more remote degree take by representation. |
| If no spouse or domestic partner and no surviving grandparent or descendant of grandparent | All to decedent’s stepchildren or their descendants by representation. |
| N.J.S. 3B:5-3 and N.J.S. 3B:5-4. | |
Of note, half-blood heirs inherit the same amount as whole-blood heirs in New Jersey. This means if a decedent leaves only siblings as heirs with two full-blood siblings and one half-sibling, all three siblings would inherit equally.
What the chart demonstrates is that the intestacy laws in New Jersey do not reach back indefinitely until living relatives are found. A recent 2019 decision out of New Jersey Superior Court shows that even when a person dies with living relatives, his or her assets could end up in the hands of the State of New Jersey.1 In re: Estate of Rosenthal confirmed that the intestacy laws in fact only reach back to the third branch, which would include grandparents and descendants of grandparents such as first cousins. When Sally Rosenthal died, she did not have a Will, was unmarried, and had no children. Even though Sally had living relatives, the court ruled that her assets be delivered to the New Jersey Unclaimed Property Administrator.
Plaintiffs in Sally’s case were the court-appointed Administrators of her estate. They hired a genealogical company to search for Sally’s family members. The company attempted to locate heirs from her second and third branches, which would include parents, grandparents and their descendants. After three years of searching, the genealogical company was only able to locate Sally’s second cousins and second cousins once removed on her mother’s side. The Administrators of Sally’s estate then filed an action to compel distribution of the estate to her second cousins and second cousins once removed.
The State of New Jersey insisted that Sally’s estate be delivered to the Unclaimed Property Administrator instead. The State argued that the identified relatives were not “heirs” under New Jersey law. The court agreed with the State and found that the distribution of a decedent’s assets does not go beyond the third branch, i.e., does not extend to great-grandparents or descendants of great-grandparents. The fourth branch includes great-grandparents and descendants of great-grandparents such as second cousins. Because no member of the third or nearer branch was found, the court directed that Sally’s intestate estate be delivered to the New Jersey Unclaimed Property Administrator.
The lesson here is that the only true way to control where your assets go is to execute a Will. Even if the intestacy laws seem to deliver your property according to your wishes, having a Will saves family and friends from hassle and confusion during a difficult time. We urge any adult who does not have a Will to reach out to an estate planning attorney to discuss available options.
1 In re Estate of Rosenthal, No. P-461-18, 2019 WL 5459805 (N.J.Super.Ch. Mar. 06, 2019).