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New Jersey Estate & Probate Law
Title 3A – Administration of Estates – Decedents and Others
3A:2A-41. Meaning of child and related terms
If, for purposes of intestate succession, a relationship of parent and child must be established to determine succession by, through, or from a person,
a. The relationships and rights of an adopted minor child shall be those as provided by section 14 of P.L.1977, c. 367 (C. 9:3-50), and the relationships and rights of an adopted adult shall be as provided in N.J.S. 2A:22-3.
b. In cases not covered by subsection a., a person
is the child of its natural parents regardless of their marital status. The parent and child relationship may be established by proof that parentage has been adjudicated under prior law, under the laws governing probate, by an order of a court in another state or pursuant to the “New Jersey Parentage Act,” P.L.1983, c.17 (C.9:17-38 et seq.).
L.1977, c. 412, s. 44, eff. Sept. 1, 1978. Amended by L.1979, c. 221, s. 2, eff. Oct. 11, 1979; L.1983, c. 10, s. 1.
3A:2A-84. Repeals
N.J.S. 3A:1-1, 3A:3-1 through 3A:3-3, 3A:3-6 through 3A:3-11, 3A:3-13, 3A:3-14, 3A:3-22, 3A:4-1 through 3A:4-7, 3A:4-9 through 3A:4-11, 3A:12-7 through 3A:12-9, 3A:13-1, 3A:24-2, 3A:25-1 and 3A:25-8 are hereby repealed.
L.1977, c. 412, s. 90.
3A:16-16. Sale free from dower or curtesy; order of court; deed to purchaser
In proceedings in any court for the sale of real estate by a fiduciary when a person is entitled to a right or estate of dower or curtesy in the premises, or any part or share thereof, the court may, having regard to the interests of all persons concerned, determine whether such right or estate shall be excepted from the sale of the premises or sold therewith, and enter its judgment or order accordingly.
If the sale of the premises including such right or estate is ordered, the estate and interest of every such person shall pass thereby, and the purchaser, his heirs and assigns shall hold the premises free and discharged from all claims by virtue thereof.
3A:16-17. Compensation to dower or curtesy holder by lump sum or investment
When a right or estate of dower or curtesy is sold pursuant to section 3A:16-16 of this title, the court shall direct payment of such sum in gross out of the proceeds of the sale of the real estate to the person entitled to such right or estate, as shall be deemed a just and reasonable satisfaction therefor, and which the person so entitled shall consent in writing to accept in lieu thereof. If no such consent is given, the court shall ascertain and determine what proportion of the proceeds will be a just and reasonable sum to be invested for the benefit of the person entitled to such right or estate, and shall direct that such sum be invested under direction and control of the court for the benefit of the parties entitled, and that the income thereon be paid to them as it becomes due as a compensation for, and in lieu of the right or estate of dower or curtesy, and that at the death of the person entitled to the income the principal sum be paid to or distributed among the parties entitled thereto.
3A:25-12 Distribution; when and how made.
3A:25-12. When a portion of the proceeds of real estate sold by judgment of the Superior Court to satisfy debts of a decedent is invested for the benefit of the surviving spouse or domestic partner during his or her lifetime, the court directing the sale, shall, upon the death of the life beneficiary, order the portion so invested to be distributed to the heirs or devisees of the person whose real estate was so sold in accordance with the law of descent or the will of the testator, as the case may be, unless the amount realized from the sale of said real estate remaining after the investment of said portion for the benefit of the surviving spouse was insufficient to pay the debts of the decedent as proved and allowed in the proceedings in which said judgment to sell was made and, in such case, the court shall direct the payment of the balance of such debts out of said principal sum so invested, so far as it shall be adequate for that purpose, in pro rata shares according to the amount of such debts so proved and allowed and shall direct distribution of any balance of said principal sum, remaining after the payment of said debts and interest, among the said heirs and devisees as aforesaid. However, that if any creditor, his personal representative or successor in interest, neglects for six years after the death of such surviving spouse to claim any balance upon his claim so proved and allowed as aforesaid, the share of said principal sum which would have been paid to such creditor hereunder, shall be distributed, by order of the court, among the said heirs and devisees as aforesaid.
L.1951, c.345; saved from repeal N.J.S. 3B:28-6; amended 1991, c.91, s.148; 2005, c.331, s.27.
3A:25-39 Definitions.
1.As used in this act:
a.A “present interest” is one to take effect in immediate possession, use or enjoyment without the intervention of a preceding estate or interest or without being dependent upon the happening of any event or thing.
b.A “future interest” is one to take effect in possession, use or enjoyment dependent upon the termination of an intervening estate or interest or the happening of any event or thing.
c.An “heir” means a person, including the surviving spouse or domestic partner, entitled under the statutes of intestate succession to the property of a decedent.
d.A “devisee” means any person designated in a will to receive a devise, but does not mean a trustee or trust designated in a will to receive a devise.
e.A “devise,” when used as a noun, means a testamentary disposition of real or personal property and when used as a verb, means to dispose of real or personal property by will.
L.1979,c.484,s.1; amended 2005,c.331, s.28.
3A:25-40. Devisee, beneficiary or appointee under testamentary instrument, or heir; whole or fractional share
Any person who is a devisee or beneficiary under a testamentary instrument, or appointee under a power of appointment exercised by a testamentary instrument, including a person succeeding to a disclaimed interest, or an heir may disclaim in whole or in part the right of succession to any property or interest therein, including a future interest, by filing a disclaimer under this act. A disclaimer may be of a fractional share, expressed as either a percentage or dollar amount, or any limited interest or estate.
L.1979, c. 484, s. 2 eff. Feb. 28, 1980.
3A:25-41. Instrument; formalities; contents
The instrument disclaiming shall be in writing, signed and acknowledged by the person disclaiming, and shall (1) describe the property or interest disclaimed, and if real property, the municipality and county wherein the real property is situated (2) declare the disclaimer and extent thereof.
L.1979, c. 484, s. 3 eff. Feb. 28, 1980.
3A:25-42 Disclaimer on behalf of decedent, minor or incapacitated person by personal representative or guardian.
4.A disclaimer on behalf of a decedent, minor, or incapacitated person may be made by the personal representative of the decedent or the guardian of the estate of the minor or incapacitated person. Such disclaimer shall not be effective unless, prior thereto, the personal representative or guardian has been authorized to disclaim by the court having jurisdiction of the estate of the decedent, minor, or incapacitated person, after finding that it is advisable and will not materially prejudice the rights of creditors, devisees, heirs, or beneficiaries of the decedent, the minor, or incapacitated person or his creditors, as the case may be.
L.1979, c.484, s.4; amended 2013, c.103, s.20.
3A:25-43. Time of filing of instrument
a. The instrument disclaiming a present interest shall be filed not later than 9 months after the death of the decedent or of the donee of the power.
b. The instrument disclaiming a future interest shall be filed not later than 9 months after the happening of the event which determines the taker’s right to possession, use or enjoyment of the property or interest.
c. The time within which a disclaimer shall be filed may be extended by the court for reasonable cause, and on notice to such persons and in such manner as the court may direct.
L.1979, c. 484, s. 5 eff. Feb. 28, 1980.
3A:25-44. Place of filing; delivery of copy to personal representative, fiduciary of decedent or donee of power or holder of legal title; real estate; recordation; book of “Disclaimers”
a. The disclaimer shall be filed in the office of the surrogate or Superior Court in which proceedings have been commenced or will be commenced for the administration of the estate of the decedent or deceased donee of the power. A copy of such disclaimer shall also be delivered in person or mailed by registered or certified mail to any personal representative, other fiduciary of the decedent or donee of the power or to the holder of the legal title to which the interest relates.
b. If real property or any interest therein is disclaimed, the surrogate or clerk of the superior court, as the case may be, shall forthwith forward a copy of the disclaimer for filing in the office of the clerk or register of deeds and mortgages of the county in which the real property is situated. Each county clerk or register of deeds and mortgages shall provide a book to be entitled “Disclaimers” , so arranged that he may record therein:
(1) The name of the disclaimant;
(2) The name of the decedent or the name of the donee of the power of appointment;
(3) The location of the property;
(4) The file number of the county clerk’s office or the office of register of deeds and mortgages indorsed upon each disclaimer filed;
(5) The date of filing the disclaimer.
The county clerk or the register of deeds and mortgages shall maintain in said record an alphabetical index of the names of all disclaimants stated in any disclaimer file, and also keep in his office for public inspection, all disclaimers so filed therein.
L.1979, c. 484, s. 6 eff. Feb. 28, 1980.
3A:25-45. Devolution of disclaimed property or interest; relation back to date of death
Unless the decedent or donee of the power has otherwise provided, the property or interest disclaimed devolves (a) as to a present interest, as if the disclaimant had predeceased the decedent or, if the disclaimant is designated to take under a power of appointment exercised by a testamentary instrument, as if the disclaimant had predeceased the donee of the power, and (b) as to a future interest as if the disclaimant had died before the event determining that the taker of the property or interest had become finally ascertained and his interest indefeasibly vested. A disclaimer relates back for all purposes to the date of death of the decedent or the donee of the power.
L.1979, c. 484, s. 7 eff. Feb. 28, 1980.
3A:25-46. Bar of right to disclaim
The right of a person to disclaim property or any interest therein is barred if the property or interest is seized under judicial process issued against the person before the expiration of the period in which he is permitted to disclaim; or if before the expiration of the period in which he is permitted to disclaim, the person (1) accepts or exercises control as beneficial owner over all or any part of such property or interest; or (2) voluntarily transfers or encumbers or contracts to transfer or encumber all or any part of such property or interest; or (3) disclaims or attempts to disclaim all or any part of such property or interest in fraud of his creditors as set forth in the Uniform Fraudulent Conveyance Law (R.S. 25:2-7 et seq.); or (4) executes a written waiver of the right to disclaim.
L.1979, c. 484, s. 8 eff. Feb. 28, 1980.
3A:25-47. Binding effect
The disclaimer or the written waiver of the right to disclaim shall be binding upon the disclaimant or person waiving and all persons claiming by, through or under him.
L.1979, c
3A:25-49. Continuance of rights under other statutes
This act does not abridge the right of a person to waive, release, disclaim or renounce property or an interest therein under any other statute.
L.1979, c. 484, s. 11 eff. Feb. 28, 1980.
3A:25-50. Interests in property existing on effective date of act
An interest in property existing on the effective date of this act as to which, if a present interest, the time for filing a disclaimer under this act has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after the effective date of this act.
L.1979, c. 484, s. 12 eff. Feb. 28, 1980.
3A:35-3. Trust estates not subject to dower or curtesy
When a deed or will vests title to real estate in a trustee to hold in trust for the benefit of a cestui que trust, and a statement as to the trust appears on the face of the deed or will, the wife or husband of the trustee shall not have a right or estate of dower or curtesy in the trust estate, and the trustee may, by his or her individual deed, convey the same free from any such right or estate.
. 484, s. 9.
3A:25-48. Existence of right notwithstanding limitation
The right to disclaim exists notwithstanding any limitation on the interest of the disclaimant in the nature of a spendthrift provision or similar restriction.
L.1979, c. 484, s. 10 eff. Feb. 28, 1980.
3A:35-4. Quarantine
Until dower or curtesy is assigned, the widow or widower may remain in, hold and enjoy the mansion house of his or her spouse and the messuage and plantation belonging thereto, without being liable to pay rent therefor.
After assignment of dower or curtesy, the rights confirmed in and granted to the widow or widower by this section shall cease.
3A:36-1. Action to recover dower or curtesy; damages
A widow or widower entitled to dower or curtesy in any real estate, who cannot have it without instituting an action, or whose right is unfairly assigned, or is not assigned within 40 days after the death of her or his spouse, may recover the same together with damages sustained upon until judgment by reason of the use and enjoyment thereof being unlawfully withheld; but as to real estate whereof her or his spouse was previously seized, but not seized at death, damages shall be recovered only from such time as she or he shall make demand upon the owner for dower or curtesy therein.
3A:36-2 Admeasurement.
3A:36-2. A widow or widower entitled to dower or curtesy in real estate whereof her or his spouse died seized, an heir, devisee, or guardian of a minor or incapacitated person entitled to an estate in the real estate, or a purchaser thereof, may institute an action in the Superior Court for the assignment to the widow or widower of her or his dower or curtesy therein.
Amended 1991, c.91, s.149; 1997, c.379, s.1.
3A:36-3. Where admeasurement cannot be had without prejudice; sale as in partition
3A:36-3. When the Superior Court determines that the real estate, or part thereof, is so circumstanced that dower or curtesy cannot be assigned, admeasured and set off without prejudice to the owners, it may direct a sale thereof as in an action for partition where actual partition cannot be had without prejudice to owners, or in its discretion it may direct an assignment of the dower or curtesy from the rents and profits of the real estate. The court may order the real estate sold free from dower or curtesy, making compensation for the value thereof.
Amended 1991,c.91,s.150.
3A:36-4. Admeasurement when real estate is sold subject to dower or curtesy by judgment
3A:36-4. If real estate is lawfully sold by a sheriff, assignee in bankruptcy or other public officer, whereby an inchoate right of dower or curtesy does or shall remain, the purchaser shall have the right, in an action in the Superior Court to have one half part thereof, or such other part according to the law in force when the right or estate became vested, admeasured and set off as and for the dower or curtesy portion.
Amended 1991,c.91,s.151.
3A:36-5. Effect of admeasurement
If the dower or curtesy estate becomes consummate after an admeasurement authorized by section 3A:36-4 of this title, the widow or widower shall have for her or his life the portion so admeasured, and the remaining portion of the real estate shall be held by the purchaser free and clear of all right or estate of dower or curtesy from the time of the judgment of the court so admeasuring, unless the same be set aside or reversed.
3A:37-1. Bar by devise; election of widow or widower
If a husband or wife makes a valid devise of real estate to his or her spouse, for life or otherwise, without expressing whether or not it is intended to be in lieu or bar of dower or curtesy, the surviving spouse shall not be entitled to dower or curtesy in any real estate devised by the will, unless, within 6 months after probate of the will, he or she files with the surrogate of the county wherein he or she resides or wherein the real estate so devised to him or her is situate, a written refusal to receive the same in satisfaction and bar of dower or curtesy in other real estate. By such refusal he or she shall be deemed to have renounced the said devise.
3A:37-2. Bar by adultery
If a married person voluntarily leaves his or her spouse and goes away and continues with his or her paramour, such person shall be forever barred from having jointure, dower or curtesy, as the case may be, unless the deserted spouse voluntarily becomes reconciled to and lives with the deserting spouse, in which case jointure, dower or curtesy shall be restored.
3A:37-4. Bar by jointure; dower
A widow may be barred of her dower by jointure.
3A:37-5. Waiver of jointure; effect of demand
If a jointure is made before an intended wife becomes of age, or during her marriage, the widow may, at her election, waive the jointure and demand and have her dower.
If a jointure shall, through any defect, fail to be a legal bar to dower and the widow, availing herself of such defect, shall demand her dower, the estate or interest so conveyed or assured to such widow shall thereupon cease and determine.
3A:37-6. Eviction from jointure
If a widow be lawfully expelled or evicted from her jointure, or from any part thereof, without fraud, by lawful entry or action, she shall be endowed of such much of the residue of her husband’s real estate whereof she would have been endowed but for the jointure, as shall equal in amount or extent the real estate from which she is so expelled or evicted.
