Intestate Succession in New Jersey

If you die without a will in New Jersey, your assets will go to your closest relatives under state "intestate succession" laws. Here are some details about how intestate succession works in New Jersey.

Which Assets Pass by Intestate Succession

Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:

• property you've transferred to a living trust
• life insurance proceeds with a named beneficiary
• funds in an IRA, 401(k), or other retirement account with a named beneficiary
• securities held in a transfer-on-death account
• real estate for which you have a transfer on death deed
• vehicles for which you have a transfer on death registration
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy or tenancy by the entirety.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don't have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.

To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in New Jersey.

Who Gets What in New Jersey?

Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here's a quick overview:

The Spouse's Share in New Jersey

In New Jersey, if you are married and you die without a will, what your spouse gets depends on whether or not you have living parents or descendants -- children, grandchildren, or great-grandchildren. If you don't, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property as follows:

If you die with parents but no descendants. Your surviving spouse inherits the first 25% of your intestate property -- as long as it is not less than $50,000 or more than $200,000 -- plus 3/4 of the balance.

Example: Gerry is married to Joe, and her father is still alive. Gerry owns a house in joint tenancy with Joe, and Joe is also the named beneficiary of Gerry's retirement account. When Gerry dies, Joe automatically inherits the house and any remaining retirement funds; those things are not intestate property. Gerry also has $400,000 worth of additional property that would have passed under a will if she had made one. Joe inherits $325,000 worth of that property – that is, $100,000 (25% of $400,000) plus $225,000 (3/4 of the remaining $300,000). Gerry's father inherits $75,000.

If you die with children or other descendants from you and the surviving spouse, and your surviving spouse has other descendants from previous relationships. Your surviving spouse inherits the first 25% of your intestate property -- as long as it is not less than $50,000 or more than $200,000 -- plus 1/2 of the balance.

Example: Bill is married to Karen, and they have two grown children. Karen also has a son from a previous marriage. Bill and Karen own a large bank account in joint tenancy, and Bill took out a life insurance policy naming Karen as the beneficiary. When Bill dies, Karen receives the life insurance policy proceeds and inherits the bank account outright. Bill also owns $300,000 worth of property that would have passed under a will, so Karen inherits $187,500 worth of that property – that is, $75,000 (25% of 300,000) plus $112,500 (1/2 of the remaining $225,000). The two children split the balance of $112,500, inheriting $56,250 each.

If you die with descendants who are not the descendants of your surviving spouse. Your surviving spouse inherits the first 25% of your intestate property -- as long as it is not less than $50,000 or more than $200,000 -- plus 1/2 of the balance.

Example: Barrett is married to Jed and also has a 12-year-old daughter from a previous marriage. Barrett owns a house in joint tenancy with Jed, plus $200,000 worth of additional, separate property that would have passed under a will if Barrett had made one. When Barrett dies, Jed inherits the house outright and $125,000 worth of Barrett's property – that is, $50,000 (25% of 200,000) plus $75,000 (1/2 of the remaining $150,000). Barrett's daughter inherits the remaining $75,000 share of Barrett's property.

In New Jersey, the rules that apply to married couples also apply to registered domestic partners.

Children's Shares in New Jersey

If you die without a will in New Jersey, your children will receive an "intestate share" of your property. The size of each child's share depends on how many children you have, whether or not you are married, whether your spouse is also their parent, and whether your spouse has children from another relationship. (See the table above.)

For children to inherit from you under the laws of intestacy, the state of New Jersey must consider them your children, legally. For many families, this is not a confusing issue. But it's not always clear. Here are some things to keep in mind.

• Adopted children. Children you legally adopted will receive an intestate share, just as your biological children do. N.J. Stat. Ann. § 2A:22-3.
• Foster children and stepchildren. Foster children and stepchildren you never legally adopted will not automatically receive a share. However, if you die without any other relatives, your stepchildren will have the right to inherit. N.J. Stat. Ann. § 3B:5-4.
• Children placed for adoption. Children you placed for adoption and who were legally adopted by another family will not receive a share. However, if your biological children were adopted by your spouse, that won't affect their intestate inheritance. N.J. Stat. Ann. § 2A:22-3.
• Posthumous children. Children conceived by you but not born before your death will receive a share if they survive at least 120 hours after birth. N.J. Stat. Ann. § 3B:5-8.
• Children born outside of marriage. If you were not married to your children's mother when she gave birth to them, they will receive a share of your estate if you acknowledged your paternity or if your paternity is otherwise established under New Jersey law. N.J. Stat. Ann. § 9:17-41.
• Children born during your marriage. Any child born to your wife during your marriage is assumed to be your child and will receive a share of your estate.
• Disinheritance from your child. You will not be able to inherit from your child if you failed to acknowledge or abandoned your child, if you were convicted of sexual assault, criminal sexual contact, endangering the welfare of a child, or an attempt or conspiracy to commit murder, or if you abused or neglected your child which contributed to his or her death. N.J. Stat. Ann. § 3B:5-14.1.
• Grandchildren. A grandchild will receive a share only if that grandchild's parent (your son or daughter) is not alive to receive his or her share. N.J. Stat. Ann. § 3B:3-41.

If you want to read the law, New Jersey Statutes § § 3B:5-8 to 3B:5-10 cover parent-child relationships. You can search the statutes from the website of the New Jersey State Legislature.

This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.

Will the State Get Your Property?

If you die without a will and don't have any family, your property will "escheat" into the state's coffers. However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won't go to the state if you leave a spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins of any degree, or the descendants of a spouse who dies before you do. (See New Jersey Statute § 3B:5-4.)

Other New Jersey Intestate Succession Rules

Here are a few other things to know about New Jersey intestacy laws.

• Survivorship period. To inherit under New Jersey's intestate succession statutes, a person must outlive you by 120 hours. So, if you and your brother are in a car accident and he dies a few hours after you do, his estate would not receive any of your property. N.J. Stat. Ann. § 3B:3-32.
• Half-relatives. "Half" relatives inherit as if they were "whole." That is, your sister with whom you share a father, but not a mother, has the same right to your property as she would if you had both parents in common. N.J. Stat. Ann. § 3B:5-7.
• Posthumous relatives. Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive, as long as they survive at least 120 hours after birth. N.J. Stat. Ann. § 3B:5-8.
• Immigration status. Relatives entitled to an intestate share of your property will inherit whether or not they are citizens or legally in the United States. N.J. Stat. Ann. § 3B:5-12.
• Advancements. If you gave property to a relative during your lifetime, the value of the gift is subtracted from your relative's share only if you put this in writing at the time of making the gift or if your relative admits it in writing. N.J. Stat. Ann. § 3B:5-13.

Learn More

To learn more about intestate succession, read How an Estate Is Settled If There's No Will.

You can find New Jersey's intestate succession laws in Sections 3B:5-1 to 3B:5-14.1 of the New Jersey Statutes. You can search the statutes from the website of the New Jersey State Legislature.

For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.

Need a lawyer? Search for an experienced estate planning attorney with Nolo's Lawyer Directory.