Klenk Law

If I die without a Will, do all my Assets Pass to my Same-Sex Spouse?

Posted on Mon Oct 20, 2014, on LGBT Estate Planning

Many people believe that if they are married without children, there is no need for a Will. They believe that if they die, all their assets will pass to their spouse. In New Jersey, that may not be true.

First let me give you some background. If you die a resident of New Jersey without having signed a Will, you are “intestate”, and the New Jersey Rules of Intestacy dictate who inherits your Probate Assets. Probate Assets are the things that you owned in your own name that had no beneficiary designations. Some assets, like life insurance and IRAs typically name a beneficiary. Those things pass to the beneficiary even if you have no Will. Other assets, such as real estate, bank accounts and cars typically do not have a beneficiary designation. Those are the assets that make up your Probate Estate; the assets that pass under your Will. If you have no Will, those Probate Assets pass under the New Jersey Rules of Intestacy.

If you died a New Jersey resident without children, married to a same-sex spouse and you have no Will, then your Probate Estate will pass as follows:

  • If you die married to your LGBT spouse, but have no surviving parents, then your spouse inherits all your assets.
  • If you die married to you LGBT spouse, but have parents that survive you, then
    • Your spouse inherits the first 25% of your Intestate Estate, but not less than $50,000.00 or more than $200,000.00, plus 3/4 of the remaining assets.
    • Your Parents inherit the remaining assets.

The presumption is that if you had no Will you meant to leave some of your estate for your parents’ care. This mistake can cause conflict, confusion and increase the cost of probating your estate

For example: James and Robert are married without children. James dies without a Will, owning an $800,000.00 home in Ocean County and survived by his father. James had wanted Robert to live in the house until his death, but because he died without a Will, his father forced the house sold for $800,000.00. Robert receives the first 25% ($200,000.00) and ¾ of the remainder ($450,000.00). James’ father receives the remainder ($150,000.00).

For example: Erica and Laura are married without children. Laura dies without a Will a resident of Berks County, owning several large investment accounts that have no beneficiary designation, and survived by her parents. The parents are divorced and dislike one another and neither parent cares for Erica. Both parents and Erica petition the Berks County Surrogate to serve as the Administrator. Expensive litigation that can last months may begin at this point.

Both of these scenarios are avoided easily with a Will.

For example: The same James and Robert are married without children. James dies with a Will that gives all of his assets to Robert. Robert inherits the $800,000.00 home and James’ father has no claim to the estate. Robert is free to live in the house.

For example: The same Erica and Laura are married without children. Laura dies with a Will that gives each of her parents $20,000.00 and the remainder of her estate to Erica. The Will names Erica as the executor. Erica then files the Will, the Surrogate names her executor and the feuding parents have no claim to serve as executor. Erica gives the parents each a check for $20,000.00 and they have no further interest in the estate.

Having a Will completely avoids the New Jersey Rules of Intestacy. If you are in a same-sex marriage, don’t let New Jersey determine where your assets pass, have our firm memorialize your wishes in a well drafted Will.

If you have questions about estate planning for New Jersey LGBT couples, feel free to contact our office for a free consultation. Wills, Trusts and Estates, It’s all we do!

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