Married But Living With a Same Sex Domestic Partner – Who Has Priority to be the Administrator of an Estate When There is No Last Will and Testament?

HNWElder Law, Estate Administration and Probate

  • NJ statutes define who is entitled to be appointed the Administrator of an estate where there is no Last Will.
  • Generally, the family members closest in bloodline to the decedent have first rights to be appointed Administrator.

estate administratorBackground of Case

I have a new case in the office that is quite interesting.  My client is married but has a same sex (unregistered) domestic partner.  She never divorced her husband with whom she has adult children.  Her partner died without a Last Will and Testament.  Who has priority right to be appointed the Estate representative?

What Happens When a Married Spouse Living With a Domestic Partner Dies?

We represent the surviving married partner of an unregistered domestic partner who wants to be appointed as Administrator.  She is not related to decedent by either blood or marriage.  The priority of who is to be appointed as Administrator of an Estate is codified as follows:

“If any person dies intestate, 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 other person as will accept the administration. N.J.S.A. 3B:10-2. ”

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

If You’re Not Related by Blood, Can You Still Be Appointed Administrator of an Estate?

The statute also states that after 40 days from the date of the death of the intestate, “the Superior Court or surrogate’s court may grant letters of administration to any fit person applying therefor.”  Theoretically, this would mean that if nobody is appointed as administrator, it is possible for our client 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 would be unlikely, as the Surrogate would likely want renunciations from the biological family before appointing her as such, and if we had to go to Superior Court to get her appointed, we would have to notice the family anyway.

Reimbursement for Funeral Expenses

Then there is a funeral question.  The probate statute N.J.S.A. 3B:1-1 defines “claims” as “liabilities whether arising in contract, or in tort or otherwise, and liabilities of the estate which arise at or after the death of the decedent, including funeral expenses and expenses of administration.”  Our client can certainly be a creditor for the estate for paying the funeral provided she present the bill to the administrator within nine months of the date of appointment.

As with many difficult situations, the outcome is ongoing, as we try and negotiate a resolution of many issues in this Estate proceeding.

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

By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright at Freehold New Jersey, Monmouth County, New Jersey Probate and Estate Litigation Attorney


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