I’ve written a lot about the elective share rights of a surviving spouse when he or she is omitted from the will of his/her deceased spouse. You can check out my other articles about this topic below.
Can Your Spouse Disinherit You; The Power of New Jersey’s Elective Share Laws
Recently, I was asked whether an IRA or 401(k) is subject to an elective share claim of a spouse. The answer is yes.
Under N.J.S.A. §3B:8-6, retirement plans (which include 401(k) and IRA’s), are included in the value of the augmented estate. When satisfying the elective share from beneficiaries of a decedent’s non-probate estate, the law does not provide an exemption from a spouse going after a 401(k) or an IRA. However, under N.J.S.A. §25:2-1(b), retirement assets are specifically exempted from the claims of other creditors (with some exceptions), none of which includes the elective share claim of a spouse.
To discuss your NJ estate 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 or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Estate Administration Attorney