What Is the New Jersey Law Regarding Children Left Out of Wills?

By Beverly Bird

Not all states allow you to intentionally disinherit your child, but New Jersey does, according to an article by Cynthia Sharp in a February 2007 issue of the “New Jersey Law Journal.” The only person you cannot disinherit in New Jersey is your spouse. However, there are laws to prevent against inadvertent omission of a child. Consult with an attorney to make sure you include the correct language in your will so that it is executed properly.

Omission of a Child

Section 3B:5-16 of New Jersey’s statutes protects your child from accidentally being left out of your will. For instance, if you have a child after you make your will, but neglect to update and revise your will or make a new one to include her, New Jersey will assume that her omission was an oversight. If you have no other children, she will receive an intestacy share of your estate -- the portion that would have gone to her by law if you had died without a will. The only exception to this is if you left her other parent a significant inheritance that would provide for her. If you do have other children and you included them in your will, your omitted child would receive an equal share of the portion of your estate left to them.

Disinheriting a Child

If it is your intention to disinherit your child, add a specific clause to your will to that effect so that New Jersey law does not supersede your wishes. Identify the child by name, advises John W. Callinan, a certified elder law attorney. This will offer proof of your testamentary capacity to leave your child out of your will. It indicates to the court that you are of sound enough mind to know who your children are and what you are leaving to each of them.

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Rights of Other Beneficiaries

Callinan warns that there is a New Jersey statute that will allow your other beneficiaries to change the terms of your will to include a child you omitted. For instance, if you have four children and exclude one, the other three have the right to divide your estate four ways instead of three ways to include that child in the inheritance. Callinan suggests looking into the possibility of leaving a living trust instead of a will if you are afraid this might happen.

Backup Measures

The Middlesex County Surrogate's website recommends backing up your will with a letter of last instructions if you are intentionally disinheriting your child, even if you specifically included language to that effect in your will. Explain your reasons for disinheriting him in the letter, and attach it to your will. This can help avoid costly litigation if your child decides to contest.

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