Updated September 6, 2026. Quick answer: New Jersey’s elective share is not the one-third-of-everything, marriage-length figure most national pages describe. a flat one-third (1/3) of the augmented estate; no marriage-length sliding scale
What New Jersey actually sets out
| What the statute sets out | What it says |
|---|---|
| N.J.S.A. 3B:8-1 (elective share), as amended by P.L.2023, c.238, s.4 | “If a married person, partner in a civil union, or person in a domestic partnership dies domiciled in this State, the surviving spouse, partner in a civil union, or domestic partner has a right of election to take an elective share of one-third of the augmented estate under the limitations and conditions hereinafter stated, unless either the decedent or the surviving spouse, partner in a civil union, or domestic partner had filed a complaint not dismissed pursuant to R.4:6-2 of the Rules of Court, for divorce, dissolution of civil union, termination of domestic partnership or divorce from bed and board.” |
| The share and what it is measured against | a flat one-third (1/3) of the augmented estate; no marriage-length sliding scale; measured against the augmented estate; the right does not apply if either the decedent or the survivor had filed a complaint, not dismissed, for divorce, dissolution of a civil union, termination of a domestic partnership, or divorce from bed and board. The older bar on a spouse who was living separate and apart was deleted by P.L.2023, c.238, approved January 8, 2024. |
| Regime type | flat fraction, not tied to marriage length |
| Can it be waived | waivable wholly or partially, before or after marriage, by a written contract signed after fair disclosure |
| Time limit to file | a complaint must be filed in Superior Court within 6 months after appointment of a personal representative, extendable for good cause |
How it works in practice
- The right of election is held by a surviving spouse, a surviving partner in a civil union, and a surviving domestic partner. New Jersey added partners in a civil union to this section in P.L.2023, c.238, approved January 8, 2024.
- The share is measured against the augmented estate. The right does not apply if either the decedent or the survivor had filed a complaint, not dismissed under R.4:6-2 of the Rules of Court, for divorce, dissolution of a civil union, termination of a domestic partnership, or divorce from bed and board. New Jersey deleted the older bar on a spouse who had been living separate and apart when it amended this section in P.L.2023, c.238, approved January 8, 2024.
- No. This state’s formula is deliberately built to reach revocable trusts, payable-on-death accounts and other lifetime transfers, precisely so the elective share cannot be defeated by moving assets out of probate before death.
- Waiver: Waivable wholly or partially, before or after marriage, by a written contract signed after fair disclosure.
- The election has to be affirmatively filed on a deadline: a complaint must be filed in Superior Court within 6 months after appointment of a personal representative, extendable for good cause.
The national picture, including the Uniform Probate Code sliding-scale schedule that a minority of states actually use, is on the elective share calculator page; this page is the record for New Jersey specifically, and its own numbers above should be used instead of the calculator’s national default for a New Jersey estate. The one thing that reliably defeats an elective share in every state that has one is explained on whether a prenup can waive the elective share. A newly widowed reader working through the fuller list of irreversible decisions, of which this is one, can start from the surviving spouse checklist.
What this page does not settle
- The statutory text above is quoted from New Jersey’s own enacted session law, P.L.2023, c.238, s.4, approved January 8, 2024, which amended N.J.S.A. 3B:8-1. It was read against that enacted text on September 6, 2026.
- A state can amend or repeal this section without the page around it changing, and a detail specific to a reader’s own situation, such as a pending divorce, a premarital agreement, or property held jointly with right of survivorship, can change which part of the statute actually applies.
- Whether a revocable trust changes the outcome in New Jersey is explained above; that answer is specific to this state and does not generalize to any other one.
- Every quotation here was read against the source on September 6, 2026. Nothing on this page is legal advice, and the exact dollar or percentage amount a court awards depends on facts this page cannot know.
Whether this statute reaches a given family’s actual facts is decided by a court, not by this page. Nothing here is legal advice, and no one should sign a waiver or forgo an election on the strength of a web page.
Sources
- P.L.2023, c.238, s.4 (New Jersey’s enacted amendment to N.J.S.A. 3B:8-1)
- N.J.S.A. 3B:8-1 (current section text)
The sources above were retrieved and read against the state text on September 6, 2026. Every quotation on this page was checked against those bytes.