One of the primary goals in estate planning is making sure that your family is taken care of when you pass away. When it comes to estate planning with your spouse, things can get more complicated if there is any ambiguity as to how each spouse receives their inheritance. In the absence of a plan, a spouse’s share may be determined by the law of the state where they reside, which often results in an inheritance that is not halachically valid and usually is against the wishes of the person who has passed away.

In general, a spouse can receive their inheritance through a will, trust, intestacy laws or the elective share. Each of these methods of inheritance differs from the others and can result in a different distribution of assets, depending on the details of your specific situation. This article will briefly describe how these different outcomes will operate; however, if you’re unsure what is best for you and your family, it’s worth scheduling a call with an estate-planning attorney.

Wills and Trusts

The best way to prepare one’s estate is through the use of either a last will and testament or a living trust. Both of these options will allow you to designate who your heirs are and exactly how they are to receive your estate. With a trust, you can also avoid probate and specify additional conditions upon which receipt of one’s inheritance will rely, and you can even make sure that your inheritance remains within the family and out of the hands of others such as a son- or daughter-in-law that you don’t particularly care for.

When you work with an attorney experienced in creating halachically valid estate plans, you’ll also be able to create a plan that distributes your assets exactly how you wish while still adhering to the requirements of Jewish law. We’ve discussed how this works in previous articles, but if you’d like to hear more, please contact us to schedule a consultation.

So what happens if you pass away without an estate plan in place? State law will be forced into a battle with your halachic requirements where no one is the winner, as we’ll explain below.

Jewish Law and Inheritance

Before getting into how the state will handle your assets if you pass away without a will, it’s worth quickly mentioning how inheritances work according to Jewish law. In a nutshell, when a Jewish man passes away, his estate is to be divided amongst his sons, with his oldest son receiving a double share. In this situation, his wife and daughters are only entitled to maintenance and support from his sons until they are married or remarried.

When a wife passes away, if her husband is still living, he will receive her entire estate. If he has already passed away, then her estate is to be divided amongst her sons in the same manner as above, with a double portion going to the oldest. Again, her daughters would only be entitled to maintenance and support until they are married.

As we’ve mentioned before, there are methods of adhering to these rules while still creating an estate plan that allows for a more modern distribution of one’s assets. But what if you pass away without an estate plan?

Intestacy Laws

The assets of a person who fails to create an estate plan before passing away will be distributed according to the intestacy laws of the state where they resided. This can often lead to chaotic situations where the distribution of property is very different from what the deceased person would have wished for had they created a proper estate plan.

In New Jersey, spousal rights to an inheritance are strongly considered when distributing property through intestacy. However, exactly what is inherited by the surviving spouse will be determined by which other relatives of the deceased are still alive at the time of their passing.

For example, if one dies with a spouse and children only from that spouse, then their estate would go to the spouse. However, if they had children from a previous relationship then the spouse would inherit 25% of the estate up to $200,000, and then one-half of the balance, with the rest being distributed amongst the children. Things get even more complicated when there are no children involved or other complicated family dynamics, but the result is the same: The state chooses where your assets go, not you.

Obviously this is a great reason to put an estate plan in place that lays out your wishes for distributing your assets. But there is still one question worth asking—what if you want to disinherit your spouse, or if you are a spouse that has been disinherited?

Elective Share

An elective share makes it hard for spouses to be removed from inheriting property from their current spouse. The law in New Jersey gives surviving spouses the right to a minimum equivalent of one-third of the estate of the deceased loved one. This elective share can be claimed even if the surviving spouse was given less than one-third of the estate in their spouse’s will, or even if they were specifically disinherited in the will.

The only scenario that would warrant a surviving spouse being disinherited is a mutual agreement between both spouses in which they waive their rights to elective shares. If a spouse wants to claim this elective share, they must be living together as a married couple at the time of death. If they are married but separated or have divorced at the time of death, it can disqualify a person from receiving an elective share. Either way, using the elective share will likely result in a distribution of one’s estate that goes against Jewish law.

How Can Rosenblum Law Help?

Rosenblum Law uses technology combined with years of experience to make estate planning an easy and efficient process. So, while it’s not pleasant to imagine a time where you might be incapacitated or not here at all, planning for these situations ahead of time is much more favorable than leaving your family to deal with it while also suffering from the stress of having a deceased or ailing family member. Call 888-572-3701 for a free, no-obligation attorney consult.

By Adam Rosenblum