Absent a written agreement or court order, NJ estate
planning law does not permit one spouse to bypass or dis-inherit the
other.
At the very least, one spouse must leave an "augmented
1/3 share" of his/her estate to the other. The determination of
this "1/3 augmented share" can be rather complicated. In calculating
this figure, it is advisable to engage a post-mortem accountant who is
familiar with this equation.
In NJ Medicaid planning circles, there are times that
attorneys advise the healthy spouse to dis-inherit their
not-so-healthy counterpart. This occurs in instances where one
spouse is diagnosed (or perceived) to have an illness or condition
which could result in a prolonged stay in a long-term care facility.
An often-used Medicaid planning strategy results in
the re-titling of most marital assets into the name of the healthy
spouse. In said spouse's Will or Living Trust, the more fragile
spouse is bypassed to the extent permitted by NJ law.
END RESULT:
If the healthy spouse unexpectedly dies first:
-
The not-so-healthy spouse receives the 1/3 augmented
share.
-
The remaining 2/3 can be used to enhance that
individual's emotional, physical or spiritual needs over and above
what the public subsidy programs (NJ Medicaid and Medicare) will
provide.
