In disclaimers of inheritance do the spouses and children not named in the will also have to renounce in the state of NJ?

Answer 1

The spouse of the person disclaiming the inheritance does not have join in the disclaimer, because in NJ a spouse has no present right to property the other spouse inherits. As to the children of of the disclaimant, this is a tricky and involved issue. They might have to join in and disclaim depending on the facts of the situation and what the disclaimant wants to accomplish. Two things to understand first: One, the effect of a disclaimer is that the inheritance disclaimed passes as if the disclaimant pre-deceased the decedent. The inheritance does not simply go back into the estate. The disclaimant cannot direct that the inheritance be given to another beneficiary. Two, NJ inheritance law has what is called an "anti-lapse" statute. It provides, unless the will says otherwise, that if a devisee who is a grandparent, stepchild or a lineal descendant of a grandparent of the decedent predeceases the decedent then the gift to that devisee passes to the descendants of the devisee by representation. (I am not going into the issue of "representation" here, so I will just say "children") If the disclaimant is such a devisee and wants the property to go back to the estate and if the will makes no specific provisions, then the disclaimed inheritance goes to the disclamant's children. In order for the inheritance to go back to the estate, the children must now sign their own disclaimers. But if they also fit within the definition of persons affected by the anti-lapse statute, then the property they disclaim will pass to their own children and those children will have to disclaim as well. I If the disclaimant is NOT such a devisee and wants the property to go back to the estate, the disclaimant's children do not have to sign a disclaimer, because the gift to the devisee was not saved to the devisee's descendant's. It lapsed and reverted to the estate. If the disclaimant is such a devisee and wants the property to go back to the estate and if the will specifies that property given to devisee who predeceases goes to some other named devisee, the children do not have to sign disclaimers, because the property goes by the terms of the will to the alternate beneficiaries. If the disclaimant is such a devisee and wants the property to go back to the estate and if there is no will, then the children will have to sign their own disclaimers. The ant-lapse provision exists in case a will makes no mention of what happens to a gift to a person who dies before the testator. A well-drafted will should make specific provisions for treatment of property given to beneficiaries who predecease or are treated as if they predecease the decedent. They are not forced to comply with the anti-lapse law.

Answer 2

In New Jersey, spouses and children not named in the will are not required to renounce their rights to inheritance. However, they may choose to challenge the will in court if they believe they have been unjustly excluded.