As I have discussed in previous blogs, if an individual is considering contesting a Will, they should also consider how the distributions from the Estate might be made should a Will contest result in an Intestate Estate. Simply put, if a Will is invalidated and there is no previous Will that can be probated by the Court, the decedent will be deemed to have died without a Will, otherwise classified as “intestate.” Under such circumstances, the intestacy statute governs how the distribution would be made by the Estate.
Under the most basic distribution of an Intestate Estate, if a spouse has survived the decedent and all of the children were both her and the decedent’s issue, then in that event, the surviving spouse would be entitled to the entire Estate. For further reference, any children of the decedent or spouse are referred to as “of issue” in Wills.
Likewise, if the spouse survived the decedent and there were no children of issue, the spouse would also receive the entire Estate. Aside from these simple scenarios, other potential scenarios can become more complex.
The next typical situation is where a spouse survives the decedent; however, the children of the decedent were not the children of the surviving spouse. Under these circumstances, the surviving spouse would not receive the entire Intestate Estate. Instead, in this case the Estate would be distributed as follows: the surviving spouse would receive the first 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus one-half of the balance.
Another scenario which can occur is if the parent of the decedent survives him or her, but there are no children of the decedent. In this case, the surviving spouse would receive the first 25% of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus three-quarters of the balance. As is plainly evident, under these scenarios the surviving spouse will receive the majority of the estate.
The next scenario involves a situation if there is a mixture of surviving children between the decedent and the surviving spouse. If all the decedents’ surviving children are also descendants of the surviving spouse, and the surviving spouse has one or more surviving children who are not children of the decedent, or if there are surviving children of the decedent who are not children of the surviving spouse, the surviving spouse will receive 25% percent of the Intestate Estate, but not less than $50,000 nor more than $200,000, plus one-half the balance of the Intestate Estate.
Under N.J.S.A. 3B:5-4, the Intestate Succession Law provides for the distribution to heirs other than a surviving spouse or domestic partner. This statute provides that any of the Estate not passing to the decedent’s surviving spouse or domestic partner shall pass as follows: first, to the decedent’s children by representation. If there are no children of the decedent, then the Estate passes to the decedents’ parents equally if both survive or to the surviving parent.
This blog provides a quick glance as to potential distributions under an Intestate Estate. It can, however, become vastly more complex if we have one or two surviving parents, children from other relationships which might be children of the decedent or of the surviving spouse, or numerous other permutations. It is also worth noting that this statute only applies if there is a determination that there is no Will to probate. It is for these reasons that it is important for a party to consider the numerous types of distributions should a Will be invalidated and the Estate be distributed under the laws intestacy.