Dear Moneyist,
I have been married for three years, and my husband and I are in our 70s. My husband previously promised me his apartment and 15% of his assets. However, after visiting with his daughter he made a new will with a trust. I also have to pay the expenses, which I probably can’t afford. Now I will only inherit 10% of his estate and the right to stay in the apartment for the rest of my life.
Also see: Can I leave my stepchildren nothing if my husband dies?
Is that legal in New Jersey where we live? And if he dies before I do, what do I do for other resources? I would not like to go against his will. (I am one of two executors.) It’s not fair. His total assets are valued at more than $2 million, but that includes his apartment. Mine are worth approximately $300,000, and I have no other home.
Left in the lurch
Dear Lurched,
Your letter is proof that millennials are unfairly tarred with the moniker of being the most entitled of all generations. You’ve got a pretty good deal.
Let’s recap: You’ve been married to this man for three years, you’re both in your 70s and he reduced his promise from 15% of his $2 million to 10%. That’s a notable, but not massive reduction. When he promised you his home, he may not have been clear. Would you have married him if you had known his daughter would ultimately inherit his home?
Look at this another way: If your father married a woman and, after three years of marriage, decided to give his new wife his home instead of you — his flesh and blood, his daughter who he has known his entire life — would you think that was fair? I’m guessing you would be writing to the Moneyist and wondering who this new wife thinks she is.
However, you should seek counsel. You may be in luck. Without a prenuptial agreement determining what happens to your husband’s estate after he dies, New Jersey has a “spouse-augmented estate provision” giving the surviving spouse an “elective share” equivlaent to approximately one-third of the deceased spouse estate as protection.
“The augmented estate is essentially the decedent spouse’s probate estate, which includes all assets passing under the decedent’s will, plus certain assets transferred by the decedent during lifetime in which he or she retained some type of control, or which were made within two years of death,” according to Norris McLaughlin, a law firm in Bridgewater, N.J.
This elective share also includes joint accounts with someone other than the surviving spouse, “but does not include life insurance, joint annuities or pensions,” it added. “Although there are federal rules which grant a surviving spouse survivor benefits in pensions and certain retirement plans which would override New Jersey law.”
But there’s a catch. The statute of limitations on wills and inheritance often expires in a matter of months, depending on what state you live in. In New Jersey, “you must be living together as spouses at the time your spouse passes away, you must actually file a complaint in court within six months of the appointment of the decedent spouse’s executor,” Norris McLaughlin said.
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You would seem to qualify based on your financial needs. “If you have your own property, either acquired independently or inherited from your spouse, that is equal to or in excess of the elective share amount, the elective share is deemed satisfied and you are entitled to nothing beyond what is provided under the will,” the law firm added.
Housing expenses would, however, need to be paid by you. Who should pay the expenses if you don’t? Your husband from the grave? Should he leave money to pay for them too? In a way, he did: 10% of his estate. Or should his daughter pay for the privilege of not realizing her inheritance until you pass away? That could be another (hopefully) 20 or 30 years.
Do you have questions about inheritance, tipping, weddings, family feuds, friends or any tricky issues relating to manners and money? Send them to MarketWatch’s Moneyist and please include the state where you live (no full names will be used).
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Hello there, MarketWatchers. Check out the Moneyist private Facebook group, where we look for answers to life’s thorniest money issues. Readers write in to me with all sorts of dilemmas: inheritance, wills, divorce, tipping, gifting. I often talk to lawyers, accountants, financial advisers and other experts, in addition to offering my own thoughts. I receive more letters than I could ever answer, so I’ll be bringing all of that guidance — including some you might not see in these columns — to this group. Post your questions, tell me what you want to know more about, or weigh in on the latest Moneyist columns.
