Updated October 8, 2026. Quick answer: No. New Jersey is a common law state. N.J.S.A. 2A:34-23 lets the court make an award “to effectuate an equitable distribution of the property” acquired during the marriage, and a surviving spouse has an elective share at death. The IRS lists nine community property states.
New Jersey community property at a glance
| Item | What the documents say |
|---|---|
| Regime | Common law |
| At divorce | Equitable distribution of property acquired during the marriage, on the factors in N.J.S.A. 2A:34-23.1 |
| At a spouse’s death | An elective share of one-third of the augmented estate, subject to stated limitations (N.J.S.A. 3B:8-1) |
| Federal basis at the first death | A qualified joint interest between spouses: one-half is included in the estate and steps up |
| Source | New Jersey Legislature (Office of Legislative Services); IRS Publications 551 and 555; 26 U.S.C. 1014 |
What the New Jersey statutes say
New Jersey’s term is equitable distribution, and the statute lists what the court weighs: section 2A:34-23.1 begins “In making an equitable distribution of property, the court shall consider” the factors that follow.
At divorce in New Jersey
Equitable distribution is not an equal-split rule. The court applies the section’s factors to the property acquired during the marriage or civil union.
At a spouse’s death in New Jersey
Under N.J.S.A. 3B:8-1, a surviving spouse of a person who “dies domiciled in this State” has a right of election to take “elective share of one-third of the augmented estate”, subject to the limitations the section states.
What it does to basis when the first spouse dies
Because New Jersey is not on the IRS’s list of community property states, a couple’s basis at the first death depends on title. IRS Publication 551 says to “Include one-half of the value of a qualified joint interest” in the decedent’s gross estate, and the survivor’s basis is the cost of the survivor’s own half plus the basis in the half inherited. Property in the decedent’s name alone is different: 26 U.S.C. 1014(a) gives the heir a basis equal to the property’s fair market value at the date of the decedent’s death.
Computed illustration, not tax advice: suppose a New Jersey couple paid $100,000 for shares held as a qualified joint interest, and the shares are worth $400,000 when one spouse dies. The survivor’s basis is the total of two halves: $200,000 for the half that steps up plus $50,000 as the cost of the survivor’s own half, which makes $250,000. A sale at $400,000 would then show a gain of $150,000. In a community property state the same facts would give a basis of the whole $400,000. CMG’s common law step-up page goes through the difference.
What the documents do not say
- The archived sources are the Legislature’s statute-database excerpt pages, which quote the operative text. The documents read do not state a rule for a couple who moved to New Jersey.
Common mistakes
- Treating equitable distribution as an equal split; the court weighs factors.
- Assuming the answer in this state settles it for a couple who move; the rules depend on the state where the spouses are domiciled and, for property in a trust, on the trust.
Related: community property states by state, why only half steps up in a common law state, New Jersey retirement taxes, and New Jersey probate cost.
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Answer againSources
- 2A:34-23 Alimony, maintenance (New Jersey Statutes, search-result excerpt page, updated through P.L.2026, c.30): https://lis.njleg.state.nj.us/nxt/gateway.dll/statutes/1?f=xhitlist&xhitlist_x=Advanced&xhitlist_vpc=first&xhitlist_xsl=xhitlist.xsl&xhitlist_s=relevance&xhitlist_d=%7Bstatutes%7D&xhitlist_sel=title;path;content-type;home-title;title-path;item-bookmark;hit-context&xhitlist_hc=%5BXML%5D%5Bkwic,25%5D&xhitlist_q=%22equitable%20distribution%20of%20the%20property%22
- 2A:34-23.1 Equitable distribution criteria (New Jersey Statutes, search-result excerpt page, updated through P.L.2026, c.30): https://lis.njleg.state.nj.us/nxt/gateway.dll/statutes/1?f=xhitlist&xhitlist_x=Advanced&xhitlist_vpc=first&xhitlist_xsl=xhitlist.xsl&xhitlist_s=relevance&xhitlist_d=%7Bstatutes%7D&xhitlist_sel=title;path;content-type;home-title;title-path;item-bookmark;hit-context&xhitlist_hc=%5BXML%5D%5Bkwic,25%5D&xhitlist_q=%22Equitable%20distribution%20criteria%22
- 3B:8-1 Elective share of surviving spouse (New Jersey Statutes, search-result excerpt page, updated through P.L.2026, c.30): https://lis.njleg.state.nj.us/nxt/gateway.dll/statutes/1?f=xhitlist&xhitlist_x=Advanced&xhitlist_vpc=first&xhitlist_xsl=xhitlist.xsl&xhitlist_s=relevance&xhitlist_d=%7Bstatutes%7D&xhitlist_sel=title;path;content-type;home-title;title-path;item-bookmark;hit-context&xhitlist_hc=%5BXML%5D%5Bkwic,25%5D&xhitlist_q=%22augmented%20estate%22%20and%20%22elective%20share%22
- IRS Publication 551, Basis of Assets (December 2025): https://www.irs.gov/pub/irs-pdf/p551.pdf
- 26 U.S.C. 1014, Basis of property acquired from a decedent (United States Code, 2024 Edition): https://www.govinfo.gov/link/uscode/26/1014?link-type=html
Sources: the primary documents linked above, read on October 8, 2026. General information, not tax advice. Your own facts decide the outcome, and a tax professional or the state agency itself is the right place to confirm anything consequential.