Separated in New Jersey? Your Spouse May Still Inherit Everything

Separated in New Jersey? Your Spouse May Still Inherit Everything

by | Jun 30, 2026 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

A New Jersey appellate decision decided June 29, 2026 — In the Matter of the Estate of Agnieshka Burke — offers a stark illustration of what can happen when someone dies while a divorce is still pending. The case involves a $500,000 life insurance policy, a Will that named the estranged husband as executor and sole beneficiary, and a fight between that husband and the decedent's sister over who gets what. The court's ruling touches on three issues that matter to anyone who is separated, going through a divorce, or simply has not updated their estate plan in years: whether your Will still works the way you intended, who controls your estate when you die, and what happens to assets like life insurance that pass outside your Will entirely.

Dying With a Divorce Pending

Under New Jersey law, a divorce action ordinarily ends when a final judgment of divorce is entered. If one spouse dies before that happens, the divorce proceedings have traditionally abated — meaning they simply stop. The surviving spouse inherits under the Will or under the intestacy laws if there is no Will, and the court's power to divide marital property (called equitable distribution) disappears.

The Legislature changed this rule in January 2024 by adding subsection (h)(2) to the equitable distribution statute, N.J.S.A. 2A:34-23. The new provision states that if a divorce complaint has been filed and either party dies before a final judgment is entered, the court's authority to divide marital property does not abate. In Burke, the Appellate Division confirmed that this right belongs not just to a surviving spouse, but also to the estate of the spouse who died. In plain terms, if you file for divorce and then die before it is finished, your estate (acting through a personal representative) may still be able to pursue a share of the marital assets.

This is a significant development for anyone with a pending divorce. It means that death during divorce proceedings does not necessarily resolve the property dispute. It may simply transfer the fight to a different courtroom.

Your Executor May Have a Conflict of Interest

In Burke, Agnieshka had named her husband Jared as executor of her Will. After she died with the divorce still pending, Jared was appointed executor and also stood as the primary beneficiary under both her Will and life insurance policy. The court found this created an irreconcilable conflict of interest. As the Appellate Division put it, Jared's responsibilities to represent the estate's interests and his own personal interests were "directly adverse."

The court did not remove Jared as executor entirely, but it disqualified him from acting as executor in connection with the equitable distribution dispute — the exact proceeding where the estate's most valuable rights were at stake. It then ordered the Probate Part to appoint a substitute executor for that limited purpose, and noted that Agnieshka's Will had already named her sister as successor executor.

The lesson here is direct. If you are separated or in the middle of a divorce, your spouse is most likely still named in your Will as executor, beneficiary, or both. Unless your Will is updated or the divorce is finalized, that person retains legal authority over your estate when you die. New Jersey law does automatically revoke certain transfers to a former spouse after a divorce is complete under N.J.S.A. 3B:3-14, but that protection does not kick in until the divorce is actually finalized. Separation alone changes nothing.

Non-Probate Assets Are a Separate Problem

Most people assume their Will controls everything they own. It does not. Assets that pass by beneficiary designation — life insurance, retirement accounts, payable-on-death bank accounts — transfer directly to the named beneficiary regardless of what the Will says. These are called non-probate assets, and they pass outside of probate entirely.

In Burke, Agnieshka's $500,000 life insurance policy named Jared as the sole beneficiary. The couple was separated and a divorce was pending, but she had not changed the designation. The Appellate Division sent the question of who is entitled to those proceeds to the Family court for resolution, but it was careful to note that Jared remains the named beneficiary and that no settlement agreement or final divorce judgment existed that would automatically revoke that designation under N.J.S.A. 3B:3-14.

This is where many people are caught off guard. You can update your Will, but if you forget to change the beneficiary on your life insurance policy or your 401(k), those assets still pass directly to your estranged spouse. The only way to ensure your beneficiary designations reflect your current intentions is to change them directly with the insurance company, bank, or plan administrator — a Will cannot override them.

What You Should Do Now

If you are separated or going through a divorce, your estate plan needs immediate attention on several fronts. First, after consulting your divorce attorney, review and update your Will to name a new executor and new beneficiaries. Second, also after consulting your divorce attorney, change beneficiary designations on every account that carries one — life insurance, IRAs, 401(k)s, annuities, payable-on-death accounts. Third, review any powers of attorney and health care proxies that name your spouse as your agent. In New Jersey, the divorce statute does not automatically revoke a health care proxy naming a spouse, so your estranged husband or wife may still have the legal authority to make medical decisions for you if you become incapacitated. For more on how that works, see who makes medical decisions in New Jersey.

There are also Medicaid planning considerations that arise when a couple separates but does not yet divorce — particularly for couples where one spouse may need long-term care. Medicaid's spousal protection rules treat legally married couples as a unit for purposes of resource assessment, which can affect eligibility and planning options. For more on that issue, see Medicaid and divorce in New Jersey.

The Burke case is a reminder that separation is not a legal status that protects you or your estate. Until a divorce is final, your spouse remains your legal spouse for virtually every purpose that matters in estate planning. If your circumstances have changed, your documents need to change with them.

When Liens Collide: DDD Can Collect Now, Medicaid Must Wait

When Liens Collide: DDD Can Collect Now, Medicaid Must Wait

by | Mar 31, 2026 | Estate Administration, Estate Planning, Guardianship, Intestate Estate (No Will), Last Will and Testament, Legal Bulletin, Medicaid, Medicaid Estate Recovery, Medicaid Planning, Medicaid Updates, Trusts

A decision from the New Jersey Appellate Division published June 17, 2025 (In the Matter of G.W.) has clarified a critical and previously unsettled area of law concerning public benefit liens. The court held that a lien issued by the Division of Developmental Disabilities (DDD) is immediately enforceable, while a Medicaid lien cannot be collected until the beneficiary’s death — a distinction with significant consequences for estate planning.

The Background

Gabrielle W., an adjudicated incapacitated adult, received residential services funded by both DDD and Medicaid. When she inherited $600,000 from her sister’s estate, Arc of Bergen and Passaic Counties, her court-appointed property guardian, sought to protect her Medicaid eligibility by transferring those funds to a special needs trust. But standing in the way was a $1,052,304 lien from DDD for the cost of her care — a lien DDD sought to enforce immediately.

The trial court declined to enforce the DDD lien, ruling instead that Medicaid’s future estate recovery rights had priority. The court reasoned it was in Gabrielle’s best interest to preserve her Medicaid eligibility and protect the trust. But on appeal, the Appellate Division disagreed.

The Court's Holding

The Appellate Division reversed the lower court’s order, emphasizing that DDD liens are enforceable immediately under N.J.S.A. 30:4-80.1. These liens attach to the property of a living person who receives services from DDD. On the other hand, Medicaid liens can only be asserted posthumously, pursuant to N.J.S.A. 30:4D-7.2, and only against the estate of the deceased Medicaid recipient.

The court concluded there is no statutory conflict: both liens can coexist, but they operate on distinct timelines. In the case of a living person like Gabrielle, DDD had the only legally viable lien. Medicaid’s recovery rights would not ripen until Gabrielle’s death.

Why This Matters

This case is a clear warning to guardians, trustees, and estate planners: Inherited assets cannot be shielded from DDD repayment obligations simply by invoking Medicaid's future claim rights. If a client receives services from DDD and comes into money, the DDD lien must be addressed promptly — either by repayment or through the statutory compromise process. The court also made clear that a “best interests” argument cannot override a legislatively mandated lien. Courts must enforce the statutes as written.

Planning Tip

If you have a loved one who receives public benefits like Medicaid or services from DDD, careful estate planning is essential. Leaving them an inheritance outright — even with good intentions — can jeopardize their benefits and trigger immediate repayment obligations. Instead, consider using special needs trusts or other protective planning tools to ensure their continued eligibility and long-term care without exposing them to liens or disruptions in services.

The G.W. case illustrates precisely what happens when protective planning is absent. Gabrielle's sister died intestate — without a will — which meant the $600,000 passed to Gabrielle outright under New Jersey's laws of intestate succession. There was no will directing those funds into a Special Needs Trust, no advance coordination with an elder law attorney, and no mechanism to receive the inheritance in a protected form. The result was an immediate lien enforcement proceeding that consumed the entirety of the inheritance and left nothing for Gabrielle's ongoing care needs.

Had Gabrielle's sister executed a will with proper special needs planning, she could have directed her estate — or the portion intended for Gabrielle — into a third-party Special Needs Trust. Unlike a first-party trust funded with the beneficiary's own assets, a third-party SNT is established with someone else's money and carries no Medicaid payback requirement at death. Gabrielle would have received the benefit of those funds without triggering the DDD lien, and without disrupting her Medicaid eligibility.

This is one of the most important and underappreciated points in elder law and disability planning: the person doing the planning is often not the disabled individual, but the family member who intends to leave them something. A parent, sibling, or other relative who has a loved one receiving public benefits should have a will — and that will should account for the beneficiary's disability. Leaving assets outright to a Medicaid or DDD recipient, however well-intentioned, can do more harm than good.

Inheriting a House in New Jersey: What Happens When Co-Owners Disagree?

Inheriting a House in New Jersey: What Happens When Co-Owners Disagree?

by | May 21, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

If you inherit a house in New Jersey with someone else and you disagree on whether it should be sold, the situation will likely fall under property law and co-ownership rules. Here’s an overview of your options:

1. Try to Negotiate or Reach an Agreement

  • Discuss the situation with the co-owner to try and reach a compromise. This could involve buying out the other person’s share, agreeing to rent the property, or setting terms for its sale.
  • Mediation with a neutral third party can help if direct negotiation isn't successful.

2. Partition Action (Court Involvement)

  • If you cannot agree, either party can file a lawsuit for partition in the Superior Court of New Jersey.
  • A partition action can result in one of two outcomes:
    • Partition by Sale: The court orders the property to be sold, and the proceeds are divided between the co-owners according to their ownership shares.
    • Partition in Kind: If feasible, the court physically divides the property. However, this is rare for residential properties because splitting a house isn’t practical.
  • Legal costs will be involved, and the court's decision is binding.

3. One Party Buys Out the Other

  • If one person wants to keep the house, they could offer to buy out the other’s share. An appraisal may be needed to determine the home's fair market value.
  • This option avoids the costs and delays of a court proceeding.

4. Co-Ownership Agreement

  • If you and the co-owner can reach a temporary agreement, you might create a written contract outlining how the property will be managed, sold, or divided in the future.

5. Sale Through Agreement

  • If both parties ultimately agree to sell, you can jointly list the house for sale and split the proceeds according to your ownership percentages.

Key Considerations:

  • Legal Counsel: It’s advisable to consult a attorney experienced in New Jersey law. They can guide you through negotiations, prepare documents, or represent you in court if necessary.
  • Costs: If the matter goes to court, both parties may incur legal and court fees.
  • Time: A partition action can take months or even years to resolve.
  • Property Expenses: Until the matter is resolved, co-owners are typically jointly responsible for property taxes, mortgage payments (if applicable), and upkeep.
Does My Money Go to the Government if I Die With No Will?

Does My Money Go to the Government if I Die With No Will?

by | Jan 22, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

Death is not a topic many of us like to dwell on, but planning for the inevitable is essential to ensure that your hard-earned money and assets are distributed according to your wishes. One question that often arises is: what happens if you die without a Will? Specifically, does your money automatically go to the government?

The short answer is no—your money does not automatically go to the government if you die without a Will. However, the distribution of your assets Will depend on the intestacy laws of your state. If you reside in New Jersey, understanding its intestacy laws is crucial.

What Happens if You Die Without a Will in New Jersey?

In legal terms, dying without a Will is known as dying "intestate." When this happens, New Jersey’s intestacy laws come into play. These laws dictate how your estate Will be divided among your heirs, and the process generally aims to distribute your assets to your closest living relatives.

Here’s a breakdown of how New Jersey’s intestacy laws work:

1. If You Have a Surviving Spouse

The surviving spouse’s share depends on whether you have children or other close relatives:

  • No children or parents: If you leave behind only a spouse and no descendants (children, grandchildren, etc.) or parents, your spouse inherits everything.

  • With children from your marriage: If all your children are also the children of your surviving spouse, your spouse inherits everything.

  • With children from another relationship: If you have children who are not the children of your surviving spouse, your spouse inherits the first 25% of your estate (but not less than $50,000 or more than $200,000.00), plus half of the remaining estate. The rest is divided among your children.

  • With parents but no children: If you leave behind a spouse and parents but no children, your spouse inherits the first 25% of your estate (but not less than $50,000 or more than $200,000.00), plus 3/4 of the remaining estate. The rest goes to your parents.

2. If You Don’t Have a Surviving Spouse

If you are not married or your spouse has predeceased you, your assets are distributed as follows:

  • To your children, in equal shares.

  • If you have no children, to your parents.

  • If your parents are deceased, to your siblings.

  • If you have no siblings, to your nieces and nephews.

  • If none of the above relatives are alive, the estate Will be distributed to more distant relatives.

3. When the Government Steps In

Only if you die without a Will and have no living relatives does your estate “escheat” to the state. In New Jersey, this is an extremely rare occurrence. The state government is considered the last resort for inheritance when absolutely no relatives can be located.

Non-Probate Assets

Not all assets go through probate or are governed by intestacy laws or your Will. Some assets, known as non-probate assets, pass directly to beneficiaries outside the probate process. These include:

  • Jointly Owned Property: Assets held in joint tenancy or tenancy by the entirety automatically pass to the surviving owner.

  • Beneficiary Designations: Accounts like life insurance policies, retirement accounts (e.g., 401(k) or IRAs), and payable-on-death (POD) or transfer-on-death (TOD) accounts pass directly to the named beneficiaries (assuming you have completed these forms).

  • Trust Assets: Property held in a trust is distributed according to the terms of the trust and bypasses probate.

It’s important to keep beneficiary designations up to date and coordinate these with your overall estate plan. Even if you have a Will, these non-probate assets will not be subject to its terms unless the estate is named as a beneficiary.

Why You Should Have a Will

While New Jersey’s intestacy laws are designed to ensure that your estate passes to your family, this may not align with your specific wishes. For example:

  • You may want to leave a larger share to a particular family member.

  • You might wish to include friends, charities, or other beneficiaries who are not covered under intestacy laws.

  • If you have minor children, you can appoint a guardian for them in your Will.

  • You can also name an Executor to manage your estate, reducing potential conflict among family members.

Without a Will, the probate process can also be more complicated and time-consuming for your loved ones.

Final Thoughts

To ensure your assets are distributed according to your wishes and to simplify the process for your loved ones, it’s essential to create a Will. Consulting with an estate planning attorney can help you navigate the complexities of New Jersey’s intestacy laws and tailor a plan that fits your unique situation.

While your money generally Will not go to the government if you die without a Will, relying on state laws to determine the fate of your estate leaves much to chance. Taking the time to draft a Will is one of the most thoughtful and impactful gifts you can leave behind for those you care about.

Why it’s Important to Have a Last Will and Testament

Why it’s Important to Have a Last Will and Testament

by | Jan 13, 2025 | Estate Administration, Estate Planning, Intestate Estate (No Will), Last Will and Testament, Probate

A last will and testament is one of the most important legal documents you can prepare in your lifetime. It ensures that your assets are distributed according to your wishes and provides clarity and peace of mind to your loved ones after you are gone. In New Jersey, the absence of a Will can lead to a host of complications, from family disputes to lengthy probate proceedings. Here’s why having a Will is essential and how you can create one tailored to New Jersey’s legal requirements.

  1. Control Over Asset Distribution: Without a Will, New Jersey’s intestacy laws dictate how your property will be distributed. This may not align with your personal wishes, especially if you want to provide for specific family members, friends, or charities.
  2. Protection for Minor Children: A Will allows you to name guardians for minor children, ensuring they are cared for by someone you trust. It also enables you to provide financial support for their upbringing.
  3. Avoiding Family Conflicts: Clearly outlining your wishes helps minimize misunderstandings and disputes among heirs, reducing the emotional strain on your loved ones during an already difficult time.
  4. Efficient Probate Process: A well-drafted Will can streamline the probate process, saving time and reducing administrative costs.

How to Create a Last Will and Testament in New Jersey

Creating a valid Will in New Jersey involves specific steps to ensure its enforceability. Here’s a step-by-step guide:

  1. Determine Your Assets and Beneficiaries:
    • Make a comprehensive list of your assets, including real estate, bank accounts, investments, personal property, and digital assets.
    • Identify the individuals or organizations you wish to inherit your property.
  2. Choose an Executor and Trustee:
    • The Executor is the person you designate to manage your estate. Choose a trusted individual to manage your estate and ensure your wishes are carried out. This person will handle tasks like paying debts, filing taxes, and distributing assets. It is recommended that you also choose at least one alternate executor.
    • The Trustee is the person you designate to manage any funds that are to be held in trust – usually for the benefit of a minor or a person incapable of managing their own affairs. You should also choose a trusted individual and it is also recommended that you choose at least one alternate.
  3. Choose Guardians for Minor Children:
    • If you have children under 18, name guardians to care for them in the event of your death.
  4. Draft Your Will:
    • Working with a qualified attorney ensures compliance with New Jersey laws and reduces the likelihood of challenges. It is not recommended that you use an online template or prepare a holographic (handwritten) Will.
  5. Sign and Witness the Will:
    • In New Jersey, you want to have a “self-proving” Will, which is one that is properly witnessed and notarized. This minimizes the time and cost of probate.
    • The Will must be signed by you in the presence of two witnesses who also sign the document. These witnesses should not be beneficiaries to avoid conflicts of interest.
    • The Will must also be notarized, either by your attorney or a notary.
  6. Store the Will Safely:
    • Keep the original document in a secure location, such as a fireproof safe, and inform your executor of its location.
  7. Avoid keeping the Will in a bank safe deposit box because that may be difficult for your Executor to gain access to after you pass away.

Updating Your Will

Life circumstances change, and your Will should reflect those changes. Review and update your Will after major life events, such as:

  • Marriage or divorce
  • Birth or adoption of a child
  • Significant changes in assets
  • Death of a beneficiary or Executor

What Happens Without a Will in New Jersey?

If you die without a Will, your estate is distributed according to New Jersey’s intestacy laws. Typically, this means:

  • Your spouse and/or children will inherit your assets, with specific proportions depending on the family structure.
  • If you have no close relatives, your property may go to distant relatives or even revert to the state.

This process can lead to outcomes you may not have intended and cause unnecessary stress for your family.

Final Thoughts

A Last Will and Testament is more than a legal document; it’s a way to care for your loved ones and leave a lasting legacy. In New Jersey, creating a Will is a straightforward process, but it’s crucial to follow the state’s requirements to ensure its validity. Whether you are drafting your first Will or revising an existing one, taking this step is an act of responsibility and compassion.

If you are unsure where to start, consider consulting an estate planning attorney in New Jersey to guide you through the process. Your loved ones will thank you.