Intestacy and Unintended Consequences

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Rules of Intestacy / Unintended Consequences of Failing to Plan

Failure to Plan can have Unintended Consequences.  If one passes away without a will or trust, the rules of intestacy will govern.  Many people believe this means everything will go to their spouse or to their children. However, in New Jersey, there are rules governing how the estate will be distributed and for many this is an unintended consequence of not planning.  The Rules of Intestacy are as Follows:

 

3B:5-3. Intestate share of decedent’s surviving spouse or domestic partner.

 

The intestate share of the surviving spouse or domestic partner is:

1. The entire intestate estate if:

(1) No descendant or parent of the decedent survives the decedent; or

(2) 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;

1. 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, if no

descendant of the decedent survives the decedent, but a parent of the decedent

survives the decedent;

1. 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:

(1) If 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; or

(2) If one or more of the decedent’s surviving descendants is not a descendant of

the surviving spouse or domestic partner.

3B:5-4. Intestate shares of heirs other than surviving spouse or domestic

partner.

3B:5-4. Intestate shares of heirs other than surviving spouse or domestic partner.

Any part of the intestate estate not passing to the decedent’s surviving spouse or

domestic partner under N.J.S.3B:5-3, or the entire intestate estate if there is no

surviving spouse or domestic partner, passes in the following order to the

individuals designated below who survive the decedent:

1. To the decedent’s descendants by representation;
2. If there are no surviving descendants, to the decedent’s parents equally if both

survive, or to the surviving parent, except as provided in section 4 of P.L.2009,

c.43 (C.3B:5-14.1);

1. If there are no surviving descendants or parent, to the descendants of the

decedent’s parents or either of them by representation;

1. If there is no surviving descendant, parent or descendant of a parent, but the

decedent is survived by one or more grandparents, half of the estate passes to the

decedent’s paternal grandparents equally if both survive, or to the surviving

paternal grandparent, or to the descendants of the decedent’s paternal

grandparents or either of them if both are deceased, the descendants taking by

representation; and the other half passes to the decedent’s maternal relatives in

the same manner; but if there is no surviving grandparent, or descendant of a

grandparent on either the paternal or the maternal side, the entire estate passes

to the decedent’s relatives on the other side in the same manner as the half;

1. If there is no surviving descendant, parent, descendant of a parent, or

grandparent, but the decedent is survived by one or more descendants of

grandparents, the descendants take equally if they are all of the same degree of

kinship to the decedent, but if of unequal degree those of more remote degree take

by representation;

1. If there are no surviving descendants of grandparents, then the decedent’s stepchildren

or their descendants by representation.