Understanding Spousal Rights in Estate Planning – and the Rights of Nonspouse Partners

June 13, 2025
Paramus Estate Planning

Estate planning is about more than just writing a will—it’s about ensuring that your wishes are honored and your loved ones are protected. One of the most significant aspects of this process involves understanding how the law treats spouses, separated but not divorced spouses, and nonspouse partners—especially when someone dies without proper planning.

Intestate Succession: What Happens If You Die Without a Will?

Dying intestate means dying without a valid will. In that case, state law determines who inherits your assets.

New York (EPTL § 4-1.1)

  • Surviving spouse gets:

    • $50,000 + half the rest if there are children.

    • Everything if no children or other descendants.

New Jersey (N.J.S.A. § 3B:5-3 to 5-14)

  • Spouse gets everything if no children or only children shared with the spouse.

  • If there are stepchildren or children from outside the marriage, the spouse shares the estate with them.

Florida (Fla. Stat. § 732.102)

  • Surviving spouse gets:

    • All if no children or all children are shared.

    • Half if the deceased had children from another relationship.

Spousal Elective Share: Protection Against Disinheritance

If a spouse is omitted or disinherited in a will, the elective share is a legal mechanism that protects surviving spouses from disinheritance.  The elective share allows them to claim a portion of the estate, regardless of what the will says.

Each state has its own rules regarding the elective share:

🗽 New York: Spousal Right of Election

  • Right: A surviving spouse can elect to take the greater of $50,000 or one-third of the net estate, regardless of the terms of the will.

  • Inclusions: Includes testamentary substitutes like jointly held property, payable-on-death accounts, and some gifts made shortly before death.

  • Time Limit: The election must be made within six months of issuance of letters testamentary, but not later than two years after the date of death.

🏛️ New Jersey: Elective Share and Augmented Estate

  • Right: A surviving spouse is entitled to one-third of the augmented estate.

  • Augmented Estate: Includes not just probate assets but certain nonprobate transfers.  New Jersey courts scrutinize attempts to defeat the elective share through inter vivos transfers.

  • Condition: Can be lost if spouse abandoned or refused support.

🌴 Florida: Elective Share and Expanded Asset Pool

  • Homestead: A surviving spouse is entitled a life estate in the homestead, or alternatively, a 50% interest

  • Right: A surviving spouse is entitled to 30% of the elective estate.

  • Elective Estate: Broader than probate estate—includes life insurance, IRAs, revocable trusts, and more.

🌉 Community Property States—No Elective Share

  • No elective share per se.

  • Community Property Law: Surviving spouse automatically owns half of all community property.

  • Separate Property: The decedent can will their separate property freely, subject to surviving spouse’s rights under any applicable omitted spouse provisions.

  • If a spouse dies without a will, intestate succession rules determine inheritance.

💔 Separated Spouses: Do They Still Inherit?

Being separated but not legally divorced does not eliminate inheritance rights. Spouses retain elective share and intestate rights unless:

  • There is a final divorce decree.

  • The spouse is disqualified for reasons like abandonment (varies by state).

  • A valid waiver has been signed.

Examples:

  • NY: Spouse loses rights if they “abandoned” the deceased or failed to support them.

  • NJ: Courts may deny rights if the spouse refused to support or deserted the deceased.

  • FL: No automatic disqualification; must be waived or divorced.

👉 Practical Tip: If you are separated and don’t want your spouse to inherit, you must update your estate plan and consider a postnuptial or marital settlement agreement.

👥 What About Unmarried Cohabiting Partners?

In all four states, unmarried partners do not have inheritance rights unless:

  • They are named in a will or trust.

  • Assets pass via beneficiary designation or joint ownership.

Estate Planning Must-Haves for Unmarried Couples:

  • Will or revocable living trust

  • Durable power of attorney

  • Advance health care directive

  • Beneficiary designations (IRAs, life insurance)

  • Co-ownership agreements (for real estate)

💼 Retirement Accounts, Pensions & Beneficiary Designations

These assets pass outside of your will and are governed by contract law, not state intestacy or probate rules.

Examples:

  • 401(k), 403(b), IRA

  • Pensions

  • Life insurance policies

  • Transfer-on-death (TOD) accounts

🔒 Spousal Protections

Some states and federal laws give spouses default rights:

  • Federal ERISA Law: Requires spousal consent to name a nonspouse beneficiary for most employer-sponsored retirement plans (like 401(k)s).

  • IRAs: Not governed by ERISA, so owner can generally name anyone.

💡 Key Points:

  • If you’re married, your spouse may be entitled to part or all of a retirement account—even if they’re not the named beneficiary.

  • If you’re unmarried, your partner will receive nothing unless they’re named on the account.

  • Separation does not invalidate a beneficiary designation unless legally changed.

🛑 Critical Warning: A divorce decree does not automatically override a beneficiary form. You must update each account individually.

📞 Your Life Is Unique. So Should Your Estate Plan Be.

Whether you’re married, separated, or cohabiting, you can’t rely on default state law to reflect your wishes. Without proper planning:

  • A separated spouse could inherit everything

  • A long-term partner could inherit nothing

  • Outdated beneficiary forms could override your will

Protect your loved ones—and your intentions—with a well-crafted estate plan.  Don’t leave these important decisions to state law.

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