Is an IRA or 401(k) Exempt from a Spousal Elective Share Claim?

HNWEstate Administration and Probate

spousal elective shareI’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.

What is the Elective Share?

Can Your Spouse Disinherit You; The Power of New Jersey’s Elective Share Laws

A Spouse Can Waive Inheritance Rights to Their Spouse’s Estate and It’s Enforceable Against NJ Medicaid

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  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

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