New Jersey Intestacy Laws: Who Inherits When There's No Will

Roughly 60% of American adults don't have a will. In most states, intestacy law fills the gap with a simple formula. New Jersey's formula isn't simple — it uses mathematical splits that change based on who survives you, and its interaction with the Transfer Inheritance Tax can create tax bills that a basic will would have avoided entirely.

Here's how New Jersey decides who gets what if you die without a will, and why the default often produces results no one in the family expected.

The Distribution Hierarchy Under N.J.S.A. 3B:5-3

New Jersey's intestacy statute creates a priority system. The first category that has surviving members takes, and everyone below them gets nothing.

Spouse and children are joint descendants. If your surviving spouse is also the parent of all your children (and has no other children), the spouse inherits the entire estate. This is the simplest scenario, and the one most families assume applies to them.

Spouse with surviving parents but no children. The spouse receives the first 25% of the estate (minimum $50,000, maximum $200,000) plus three-quarters of the remaining balance. The parents split the remaining one-quarter equally.

Spouse with children from a previous relationship. This is where intestacy law produces the most painful results. The spouse receives the first 25% (minimum $50,000, maximum $200,000) plus exactly half of the remaining balance. The children from the prior relationship split the other half.

In practice, this means a surviving second spouse who expected to keep the family home may be forced to sell it to fund the children's statutory share. The children have no obligation to defer their inheritance, and the executor cannot withhold it.

No spouse. The estate passes to children equally. If a child has predeceased but left their own children, those grandchildren inherit their parent's share by representation.

No spouse and no children. Parents inherit equally. If no parents survive, siblings inherit equally. If no siblings, nieces and nephews. The statute continues through increasingly remote relatives.

No identifiable heirs. The estate escheats to the State of New Jersey.

What Intestacy Does to Unmarried Partners

New Jersey does not recognize common-law marriage. If you die without a will and you're in an unmarried relationship — regardless of how long you've lived together or how intertwined your finances are — your partner inherits zero.

The entire estate passes to your next of kin under the statutory hierarchy: children first, then parents, then siblings. Your partner has no standing to claim any share.

It gets worse. If your unmarried partner is named as beneficiary on any non-probate assets (life insurance, retirement accounts, POD bank accounts), those assets pass to them as intended — but because they're classified as a Class D beneficiary under New Jersey's Transfer Inheritance Tax, they owe 15% on the first $700,000 and 16% on any excess, with no exemption.

A will doesn't fix the inheritance tax classification, but it does ensure your partner actually receives the inheritance you intended. Without one, they get nothing from the probate estate and pay heavy taxes on everything they do receive through beneficiary designations.

The Blended Family Problem

Intestacy law treats every biological and legally adopted child equally — regardless of which marriage they come from. But it doesn't account for family dynamics, and it creates situations that feel deeply unfair to everyone involved.

Example: David has two adult children from his first marriage and a current wife, Sarah, who has one child from her first marriage. David dies without a will. His estate is $600,000.

Under N.J.S.A. 3B:5-3, Sarah receives the first $200,000 (maximum of 25% of $600,000) plus half of the remaining $400,000 = $200,000. Total for Sarah: $400,000. David's two children split $200,000 equally — $100,000 each. Sarah's child from her prior marriage receives nothing from David's estate.

If Sarah then dies without a will, her entire estate (including the $400,000 from David) passes to her own biological child. David's children receive nothing from the assets that originated from their father.

A will with testamentary trust provisions prevents this by directing specific assets to specific beneficiaries regardless of the intestacy formula.

The Elective Share Backstop

Even with a will, New Jersey law prevents complete spousal disinheritance. Under N.J.S.A. 3B:8-1, a surviving spouse can claim one-third of the "augmented estate" — a calculation that includes probate assets plus certain non-probate transfers like revocable trusts, joint accounts, and large gifts made within two years of death.

This right exists whether or not there's a will. But without a will, the intestacy formula usually gives the spouse more than one-third, making the elective share irrelevant.

The elective share becomes critical in situations where a will intentionally reduces the spouse's share below one-third — typically in blended family plans. To waive the elective share, the couple must execute a valid prenuptial or postnuptial agreement.

The Inheritance Tax Interaction

Intestacy creates inheritance tax exposure that a will could have avoided. Under the statutory distribution hierarchy, assets often pass to Class C beneficiaries (siblings) or Class D beneficiaries (nieces, nephews) — both of whom face significant tax rates.

• Siblings (Class C): 11% to 16% on amounts over $25,000
• Nieces and nephews (Class D): 15% on the first $700,000, 16% on any excess, with no meaningful exemption

A person with no spouse and no children whose estate passes to siblings under intestacy generates an automatic inheritance tax bill. A will could redirect some or all of those assets to tax-exempt vehicles — like a charitable bequest to a Class E beneficiary or a life insurance policy that's exempt regardless of the recipient's class.

The No-Homestead-Exemption Problem

Unlike many states, New Jersey provides no constitutional homestead exemption to protect the family home from estate creditors. The only statutory personal property exemption is $5,000 under N.J.S.A. 3B:16-5.

This means that in intestacy, if the estate has outstanding debts — credit cards, medical bills, a Medicaid recovery claim — the home can be sold to satisfy those debts before any heir receives their share. A will combined with proper asset titling (such as tenancy by the entirety for married couples) provides significantly more protection.

The Simple Fix

Intestacy is the default — but it's easily overridden by a valid will that costs nothing more than your time, a pen, two witnesses, and a notary for the self-proving affidavit.

The New Jersey Basic Estate Planning Kit walks through the complete intestacy hierarchy so you can see exactly what would happen without a will, then provides the tools to override that default with your own instructions — guardian nominations, specific bequests, beneficiary coordination, and inheritance tax planning.

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