Who Has Legal Priority to Be Appointed as Administrator of an Estate in New Jersey, a Same Sex Partner or a Biological Parent?

HNWElder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold, NJ Estate Probate Administration Attorney

Our office received an interesting new case involving the administration of an estate.  Here, the decedent who was middle-aged, died without a will.  She was not married and had no children but apparently lived in a quasi-domestic partnership relationship with another woman and her family.  What makes the case interesting is that the surviving “partner” was married at the time but separated from her spouse.  She never obtained a divorce and the two individuals lived continuously in the same residence with the adult children of the surviving partner.   The death came unexpectedly and no planning was done by the couple.  Distraught, the surviving partner wanted to be appointed administrator of the estate.  Thus, the issue raised was whether she had legal standing to be appointed or whether the biological family members of the decedent were lawfully entitled to the first right of estate administration.  The fact pattern is somewhat complicated, the law is not.

When it comes to getting a same sex partner appointed as administrator, not related to the decedent by either blood or marriage, the priority of who will be appointed as administrator of an estate is codified by law as follows:

If any person dies intestate, (meaning without a will or trust), the administration of the intestate’s estate shall be granted to the surviving spouse or domestic partner of the intestate, if he or she will accept the administration, and, if not, or if there be no surviving spouse or domestic partner, then to the remaining heirs of the intestate, or some of them, if they or any of them will accept the administration, and, if none of them will accept the administration, then to any person willing to accept the administration.  N.J.S.A. 3B:10-2.

Even though in our case the partner lived as the “domestic partner” of the decedent, she will not be recognized as one by the State of New Jersey because she never divorced her husband, which would not allow her to receive a marriage license or the equivalent of a domestic partnership from the State. Because of this, she is not an intestate heir. But the father is, and so is the rest of the decedent’s family (to a lesser degree than the father but still before the partner in order of priority). Therefore, if the parent or any of the other siblings wish to administer the estate, they have first priority.

Now the statute also states that after 40 days from the date of the death of the intestate, “the Superior Court of the Surrogate’s Court may grant letters of administration to any fit person applying therefor.” Theoretically, this would mean that if nobody was/is appointed as administrator, it is possible for her to go to the Surrogate and ask to be appointed, arguing more than 40 days has passed and she does not need the permission of anybody else to be appointed. However, in practice, this will be unlikely, as the Surrogate will likely want renunciations from the biological family before appointing her, and if we have to go to Superior Court to get her appointed, we would have to notice the family.

To discuss your NJ Estate Probate Administration matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com.  Please ask us about our video conferencing consultations if you are unable to come to our office.


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