Monroe Township, NJ asked in Estate Planning and Probate for New Jersey

Q: In NJ does a surviving spouse have any right to a house (owned prior to marriage) of deceased spouse who died intestate?

My father just passed away. He was married at the time of his death but not to my mother. My mother passed away 16 years ago and my father eventually remarried. My father had no will. He owned his house outright before he married his current wife. This is my childhood home that he and my birth mother toiled and slaved to pay for. His current wife has never even been to the home, has never resided in the home, has never put a dime into the home, and has even expressed to me in the past that she doesn't want to take the home because it is mine. However, she seems to be changing her tune now that he has passed as she sees dollar signs. Does she have any right to this home? Wouldn't it be considered separate property acquired prior to marriage? Is this situation something that a judge could rule on so as to exclude her from taking a share of what should justly and rightfully pass to me? I'm distraught to think that she would have a right to it. Any help/guidance is appreciated. Thank you.

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1 Lawyer Answer
Nina Whitehurst
Nina Whitehurst
  • Estate Planning Lawyer
  • Crossville, TN

A: In New Jersey, if a person dies without a will (which is called dying "intestate") and leaves a surviving spouse plus children from a previous marriage, the surviving spouse inherits the first 25% of the decedent's intestate property -- as long as it is not less than $50,000 or more than $200,000 -- plus 1/2 of the balance. The decedent's descendant's inherit the rest.

If the house is his only asset, it will likely have to be sold and the proceeds divided according to the foregoing formula. If there are other assets, then you might be able to work something out with his widow to allocate the house to the descendant's share and the surviving spouse can take other things like cash, cars, and personal property.

Derek John Soltis agrees with this answer

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