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Divorce, elective share and estate planning

Those who have been through divorce understand well how it can affect nearly every area of one's life. Estate planning is no exception.

Under New Jersey law, a spouse-even those disinherited in a will-may be entitled to one third of their partner's augmented estate. The augmented estate indicates the estate minus funeral and administration expenses and any enforceable claims. This amount may be received only when a surviving spouse has not been living separate and apart or has not stopped cohabiting as man and wife as in divorce or some other action which has release the parties from marriage. The one third elective share also applies to domestic partnerships.

While a spouse cannot be completely disinherited if the marital relationship was still intact, these rules do not apply if there is a divorce or annulment after execution of the will.

If the divorce has been initiated but is not yet finalized, provisions in a will benefitting a spouse are enforceable if the other spouse dies before a divorce judgment is issued.

All of this should certainly have an impact on how couples go about estate planning. Couples heading toward divorce do well to review their will well in advance and ensure it says what it should.

All of this fits into a larger scheme of how divorce affects estate planning. In coming posts, we'll be following a series of articles on this topic, which will touch on gifting, aging, non-probate assets, power of attorney, trusts, and life insurance.

Source: nj.com, "Your Legal Corner: Estate planning and divorce-the elective share," Victoria M. Dalton, January 29, 20912.

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