New Jersey Intestacy Statute: Spousal Share, Descendants, and Taxes

Under the New Jersey intestacy statute, when a person dies without a will, their probate assets pass in a fixed order set by N.J.S.A. 3B:5-3 and 3B:5-4: first to a surviving spouse, civil union partner, or domestic partner (whose share depends on who else survived), then to descendants, then to parents, and outward through siblings, grandparents, and more distant relatives before the estate would ever escheat to the state.¹²

What the Statute Actually Controls

Intestacy only governs assets that would have passed through a will. A large share of most people’s wealth transfers automatically outside the probate estate and is not touched by the statute, no matter what it says. Assets that move by their own rules include:

Life insurance proceeds, which go to the named policy beneficiary.
Retirement accounts such as 401(k)s, IRAs, and pensions, which pass to the designated beneficiary on file.
Bank or investment accounts held as joint tenants with right of survivorship, which transfer to the surviving co-owner.
Payable-on-death and transfer-on-death accounts, which pass directly to the person named.
Property titled in a trust, which distributes under the trust’s terms.

The practical effect is that the intestacy statute may control a much smaller pool than families expect. A $500,000 estate with $400,000 in retirement accounts and life insurance under named beneficiaries leaves only $100,000 subject to intestacy. It also means an outdated beneficiary designation, such as a former spouse still listed on a 401(k), controls that account even though intestacy would have directed the money elsewhere.

The Surviving Spouse or Partner’s Share

New Jersey treats civil union partners and registered domestic partners the same as spouses throughout the intestacy scheme.¹ What the spouse or partner receives depends entirely on who else survives:

No descendants and no surviving parent: the spouse takes the entire estate.
All surviving descendants are shared with the spouse, and the spouse has no other children: the spouse takes the entire estate.
All surviving descendants are shared, but the spouse has children from another relationship: the spouse receives the first 25% of the estate (no less than $50,000 and no more than $200,000) plus half the balance; the descendants split the rest.
The deceased has one or more children who are not the spouse’s children: the spouse receives the first 25% (same $50,000 floor and $200,000 ceiling) plus half the balance; the deceased’s descendants split the rest.
No descendants survive, but a parent does: the spouse receives the first 25% (same range) plus three-quarters of the balance; the surviving parent or parents take what remains.

The scenario that surprises families most is the third one. Even when every child in the picture is a child of both spouses, the surviving spouse does not inherit everything if that spouse has children from a prior relationship. The statute is guarding against those outside children indirectly benefiting at the expense of the deceased’s bloodline.

The 120-Hour Survival Rule

An heir must outlive the deceased by at least 120 hours, or five full days, to inherit under the statute.¹ Anyone who dies inside that window is treated as having predeceased, and the estate moves to the next person in line. The rule exists to avoid running the same assets through two probate proceedings back-to-back when family members die in the same accident or within days of one another.

How Descendants Inherit

When no spouse or partner survives, the entire estate passes to the deceased’s descendants.² With three living children and no complications, each child takes a third. It gets more involved when a child has died leaving children of their own.

New Jersey distributes to descendants “by representation.” The estate is divided at the nearest generation with at least one living member. Each living person at that generation gets one share, and each deceased person at that generation who left living descendants generates one share. The shares that belong to deceased members are pooled and split equally at the next generation down.

An example makes this concrete. A parent dies leaving three children: one living, and two who have already died. Between them, the deceased children left four grandchildren, two on each side. The estate divides into three shares at the children’s generation. The living child receives one-third. The remaining two-thirds pool together and split equally among all four grandchildren, so each grandchild gets one-sixth. Under a strict per stirpes system, each deceased child’s third would stay within that child’s branch and the two grandchildren on each side would share only their own parent’s portion.

Adopted, Stepchildren, Non-Marital, and Posthumous

Adopted children inherit on the same terms as biological children once the adoption is finalized.³

Stepchildren who were never legally adopted have no automatic right to inherit. This is one of the largest gaps intestacy creates for blended families. A stepparent who raised a child for decades leaves that child nothing under the statute unless adoption occurred.

Children born outside of marriage can inherit from either biological parent but may need to establish parentage. New Jersey allows this through the Parentage Act, which recognizes adjudications of paternity, genetic testing, voluntary acknowledgments, and court orders, and it removes time limitations that might otherwise bar a parentage claim in the probate context.³

A child conceived before a parent’s death but born afterward is generally treated the same as any other descendant. Children conceived after death using stored genetic material raise a harder question, and in those cases evidence of the deceased parent’s intent that the child inherit typically matters.

When a Minor Inherits

Minor children cannot directly receive or manage inherited property. When an intestate estate passes assets to someone under 18, a court-supervised arrangement is required. One common approach in New Jersey is a custodial account under the Uniform Transfers to Minors Act, with a custodian using the funds for the child’s education, health care, and support until the account terminates. New Jersey lets the termination age be set anywhere from 18 to 21. Without a will naming a trustee or specifying terms, the court decides who manages the money and under what conditions, which is often less flexible than what a parent would have chosen.

When the Estate Goes Beyond Immediate Family

If no spouse, partner, or descendants survive, the estate moves outward through more distant relatives. Each tier must be fully exhausted before the next receives anything.²

Parents. Both surviving parents share equally; a single surviving parent takes everything.
Siblings and their descendants. If no parent survives, the estate goes to siblings, including half-siblings. A deceased sibling’s children take that sibling’s share by representation.
Grandparents and their descendants. The estate splits in half, with one half to the paternal side and one half to the maternal side. On each side, a living grandparent inherits; if no grandparent is alive on a side, the share passes to that side’s descendants (aunts, uncles, then cousins) by representation. If one side has no surviving relatives at all, the other side takes everything.
More remote descendants of grandparents. If no grandparent survives and only distant cousins remain, they share equally if of the same degree of kinship, or take by representation if of different degrees.

Only if no living relative can be identified at any level does the estate escheat to the State of New Jersey. That outcome is rare, because the family tree can extend quite far before escheat is triggered, but it does happen for people with no traceable family connections.

Debts Get Paid Before Heirs

Heirs do not inherit debts personally, but the estate has to pay legitimate debts before anyone receives a distribution. When the estate cannot cover everything, New Jersey applies a fixed priority order:⁴

Reasonable funeral expenses.
Administration expenses, including court fees and attorney fees.
Debts owed to the Office of the Public Guardian for Elderly Adults.
Preferred debts and taxes, including federal and state tax obligations.
Reasonable medical and hospital costs from the last illness.
Judgments against the deceased, paid in the order they were entered.
All remaining claims, which share equally with no priority among them.

If debts consume everything, heirs receive nothing. The protection for the family is that creditors cannot pursue heirs’ personal assets to cover a deceased relative’s debts.

New Jersey Inheritance Tax Still Applies

New Jersey is one of a few states that imposes an inheritance tax, and it applies whether or not there is a will. The tax is owed by the person receiving the inheritance, and the rate turns on that person’s relationship to the deceased.⁵

Class A includes spouses, civil union partners, domestic partners, children, grandchildren, parents, and grandparents. Class A is fully exempt.
Class C includes siblings and the spouses or partners of the deceased’s children. Class C beneficiaries get a $25,000 exemption, with rates ranging from 11% to 16% above that.
Class D covers everyone not in another class, including friends, distant relatives, and children of stepchildren. Class D rates start at 15% with no meaningful exemption.⁶
Class E covers charitable, religious, and educational organizations, which are exempt.

The separate New Jersey estate tax was eliminated for anyone who died on or after January 1, 2018, so while heirs may owe inheritance tax on what they personally receive, the estate itself faces no state-level estate tax.⁵

Opening an Intestate Estate

When someone dies without a will, a family member applies for Letters of Administration through the Surrogate’s Court in the county where the deceased lived. The administrator plays the role an executor would under a will: collecting assets, paying debts, and distributing what remains under the intestacy formulas above.

New Jersey gives priority to serve based on relationship, starting with the surviving spouse or partner. If someone applying has equal or lower priority than other potential administrators, those others either sign renunciations or receive formal notice: at least 10 days for New Jersey residents and 60 days for those outside the state. The administrator typically posts a surety bond scaled to the estate’s value and signs a qualification statement pledging to administer the estate according to law. Depending on complexity and any family disputes, the process often runs six months to more than a year.

1
Justia. New Jersey Revised Statutes Section 3B:5-3 – Intestate Share of Decedent’s Surviving Spouse, Partner in a Civil Union, or Domestic Partner
2
Justia. New Jersey Revised Statutes Section 3B:5-4 – Intestate Shares of Heirs Other Than Surviving Spouse, Partner in a Civil Union, or Domestic Partner
3
Justia. New Jersey Revised Statutes Section 3B:5-10 – Establishment of Parent-Child Relationship
4
Justia. New Jersey Revised Statutes Section 3B:22-2 – Priority of Payment of Claims
5
NJ Division of Taxation. Inheritance and Estate Tax
6
NJ Division of Taxation. New Jersey Transfer Inheritance Tax Instructions