ASSEMBLY, No. 3520
STATE OF NEW JERSEY
211th LEGISLATURE
INTRODUCED NOVEMBER 22, 2004
Sponsored by:
Assemblywoman LINDA R. GREENSTEIN
District 14 (Mercer and Middlesex)
SYNOPSIS
Makes certain corrections to statutory provisions governing wills and estates.
CURRENT VERSION OF TEXT
As introduced.
An Act concerning wills and estates and amending various sections of Title 3B of the New Jersey Statutes.
Be It Enacted by the Senate and General Assembly of the State of New Jersey:
1. N.J.S. 3B:3-2 is amended to read as follows:
3B:3-2. Execution; witnessed wills; writings intended as wills.
a. Except as provided in subsection b. and in N.J.S.3B:3-3, a will shall be:
(1) in writing;
(2) signed by the testator or in the testator's name by some other individual in the testator's conscious presence and at the testator's direction; and
(3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as described in paragraph (2) or the testator's acknowledgment of that signature or acknowledgment of the will.
b. A will that does not comply with subsection a. is valid as a writing intended as a will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.
c. Intent that the document constitutes the testator's will can be established by extrinsic evidence, including for writings intended as wills, portions of the document that are not in the testator's handwriting.
(cf: P.L. 2004, c.132, s.9)
2. N.J.S.3B:3-3 is amended to read as follows:
3B:3-3. Writings intended as wills.
Although a document or writing added upon a document was not executed in compliance with N.J.S.3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent's will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.
(cf: P.L. 2004, c.132, s.10)
3. N.J.S.3B:3-14 is amended to read as follows:
3B:3-14. Revocation of probate and non-probate transfers by divorce or annulment; revival by remarriage to former spouse.
a. Except as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce or annulment, a divorce or annulment:
(1) revokes any revocable:
(a) dispositions or appointment of property made by a divorced individual to his former spouse in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the divorced individual's former spouse;
(b) provision in a governing instrument conferring a general or special power of appointment on the divorced individual's former spouse, or on a relative of the divorced individual's former spouse; and
(c) nomination in a governing instrument of a divorced individual's former spouse or a relative of the divorced individual's former spouse to serve in any fiduciary or representative capacity; and
(2) severs the interests of the former spouses in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the former spouses into tenancies in common.
In the event of a divorce or annulment, provisions of a governing instrument are given effect as if the former spouse and relatives of the former spouse disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the former spouse and relatives of the former spouse died immediately before the divorce or annulment. If provisions are revoked solely by this section, they are revived by the divorced individual's remarriage to the former spouse or by the revocation, suspension or nullification of the divorce or annulment. No change of circumstances other than as described in this section and in N.J.S.3B:7-1 effects a revocation or severance.
A severance under paragraph (2) of subsection a. does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the survivor of the former spouse unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership.
b. For purposes of this section: (1) "divorce or annulment" means any divorce or annulment, or other dissolution or declaration of invalidity of a marriage including a judgment of divorce from bed and board; (2) "governing instrument" means a governing instrument executed by the divorced individual before the divorce or annulment; (3) "divorced individual "includes an individual whose marriage has been annulled; and (4) "relative of the divorced individual's former spouse" means an individual who is related to the divorced individual's former spouse by blood, adoption or affinity and who, after the divorce or annulment, is not related to the divorced individual by blood, adoption or affinity.
c. This section does not affect the rights of any person who purchases property from a former spouse for value and without notice, or receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, which the former spouse was not entitled to under this section, but the former spouse is liable for the amount of the proceeds or the value of the property to the person who is entitled to it under this section.
d. A payor or other third party making payment or transferring an item of property or other benefit according to the terms of a governing instrument affected by a divorce or annulment is not liable by reason of this section unless prior to such payment or transfer it has received at its home or principal address written notice of a claimed revocation, severance or forfeiture under this section.
(cf: P.L.2004, c.132, s.17)
4. N.J.S.3B:3-41 is amended to read as follows:
3B:3-41. Issue and descendants to take by representation.
Where under any [will or trust] governing instrument provision is made for the benefit of issue and descendants and no contrary intention is expressed, the issue or descendants shall take by representation.
(cf: P.L.2004, c.132, s.34)
5. N.J.S.3B:5-8 is amended to read as follows:
3B:5-8. After born heirs.
An individual in gestation at a particular time is treated as living at that time if the [person] individual lives 120 hours or more after birth.
(cf:P.L.2004, c.132, s.50)
6. Section 58 of P.L.2004, c. 132 (C.3B:7-1.1) is amended to read as follows:
58. Effect of intentional killing on intestate succession, wills, trusts, joint assets, life insurance and beneficiary designations.
a. An individual who is responsible for the intentional killing of the decedent forfeits all benefits under this title with respect to the decedent's estate, including an intestate share, an elective share, an omitted spouse's or child's share, exempt property and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his share.
b. The intentional killing of the decedent:
(1) revokes any revocable (a) disposition or appointment of property made by decedent to the killer in a governing instrument and any disposition or appointment created by law or in a governing instrument to a relative of the killer, (b) provision in a governing instrument conferring a general or special power of appointment on the killer or a relative of the killer, and (c) nomination in a governing instrument of the killer or a relative of the killer, nominating or appointing the killer or a relative of the killer to serve in any fiduciary or representative capacity; and
(2) severs the interests of the decedent and the killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as tenants by the entireties, transforming the interests of the decedent and killer into tenancies in common.
c. For purposes of this chapter: (1) "governing instrument" means a governing instrument executed by the decedent; and (2) "relative of the killer" means [a person] an individual who is related to the killer by blood, adoption or affinity and who is not related to the decedent by blood or adoption or affinity.
(cf: P.L.2004, c.132, s.58)
7. Section 68 of P.L.2004, c.132 (C.3B:9-4.2) is amended to read as follows:
68. Time for disclaiming. a. The disclaimer of an interest in property may be delivered, and if required by this chapter filed, at any time after the effective date of the governing instrument, or in the case of an intestacy, at any time after the death of the intestate decedent, and must be delivered, and if required by this chapter filed, before the right to disclaim is barred by [N.J.S.3B:9-10] N.J.S.3B:9-9. With respect to joint property, the barring of the right to disclaim the present interest does not bar the right to disclaim the future interest.
b. The disclaimer of a power or discretion by a fiduciary, including an agent acting on behalf of a principal within the implied or general authority of a power of attorney, in a fiduciary capacity may be made at any time, before or after exercise.
(cf: P.L.2004, c.132, s.68)
8. N.J.S.3B:9-9 is amended to read as follows:
3B:9-9. Bar of right to disclaim.
a. The right of [a person] an individual to disclaim property or any interest therein is barred by:
(1) an assignment, conveyance, encumbrance, pledge or transfer of the property or interest or a contract therefor; or
(2) a written waiver of the right to disclaim; or
(3) an acceptance of the property or interest or a benefit under it after actual knowledge that a property right has been conferred; or
(4) a sale of the property or interest [is] that was seized under judicial process [issued against him] before the disclaimer is made; or
(5) the expiration of the permitted applicable perpetuities period; or
(6) a fraud on the [person's]individual's creditors as set forth in the "Uniform Fraudulent Transfer Act" (R.S.25:2-20 et seq.).
b. The disclaimant shall not be barred from disclaiming all or any part of the balance of the property where the disclaimant has received a portion of the property and there still remains an interest which the disclaimant is yet to receive.
c. A bar to the right to disclaim a present interest in joint property does not bar the right to disclaim a future interest in that property.
d. The right to disclaim may be barred to the extent provided by other applicable statutory law.
(cf: P.L.2004, c.132, s.72)
9. N.J.S.3B:9-10 is amended to read as follows:
3B:9-10. Binding effect of disclaimer or waiver.
The disclaimer or written waiver of the right to disclaim a property interest shall be binding upon the disclaimant or the [person] individual waiving and all [persons] individuals claiming by, through or under him.
(cf: P.L.2004, c.132, s.73)
10. N.J.S.3B:9-12 is amended to read as follows:
3B:9-12. Right to disclaim, etc.; under other law not abridged. This chapter does not abridge the right of [a person] an individual to waive, release, disclaim or renounce property or an interest therein under any other statute or law.
(cf:P.L.2004, c.132, s.75)
11. N.J.S.3B:9-13 is amended to read as follows:
3B:9-13. Extension of time to disclaim interest existing on February 28, 1980.
a. An interest in property existing on February 28, 1980, as to which, if a present interest, the time for filing a disclaimer under this chapter has not expired, or if a future interest, the interest has not become indefeasibly vested or the taker finally ascertained, may be disclaimed within 9 months after February 28, 1980.
b. An interest in property existing on the effective date of this chapter as amended and supplemented by P.L.2004, c.132 (C.3B:3-33.1 et al.) as to which the right to disclaim has not been barred by prior law may be disclaimed at any time before the right to disclaim is barred by [N.J.S.3B:9-10] N.J.S.3B:9-9.
(cf: P.L.2004, c.132, s.76)
12. N.J.S. 3B:24-4 is amended to read as follows:
3B:24-4. Apportionment of tax to transferees in absence of directions to contrary.
In the absence of directions to the contrary:
a. That part of the tax shall be apportioned to each of the transferees as bears the same ratio to the total tax as the ratio which each of the transferees' property included in the gross tax estate bears to the total property entering into the net estate for purposes of that tax, and the balance of the tax shall be apportioned to the fiduciary, the values as finally determined in the respective tax proceedings being the values to be used as the basis for apportionment of the respective taxes;
b. Any deduction allowed under the law imposing the tax by reason of the relationship of any [person] transferee to the decedent or by reason of the charitable purposes of the gift shall inure to the benefit of the fiduciary or transferee, as the case may be, subject nonetheless to the provisions of N.J.S.3B:24-3;
c. Any deduction for property previously taxed and any credit for gift taxes paid by the decedent shall inure to the benefit of all transferees and the fiduciary and the tax to be apportioned shall be the tax after allowance of the deduction and credit; and
d. Any interest resulting from late payment of the tax shall be apportioned in the same manner as the tax and shall be charged by the fiduciary and any trustee of any inter vivos trust and any other transferee wholly against corpus.
(cf: P.L.2004, c.132, s.87)
13. N.J.S. 3B:25-1 is amended to read as follows:
3B:25-1. Nonexoneration of property subject to mortgage or security interest; exception.
When property subject to a mortgage or security interest descends to an heir or passes to a devisee, the heir or devisee shall not be entitled to have the mortgage or security interest discharged out of any other property of the ancestor or testator, but the property so descending or passing to [him] the person shall be primarily liable for the mortgage or secured debt, unless the will of the testator shall direct that the mortgage or security interest be otherwise paid. A general direction in the will to pay debts shall not be deemed a direction to pay the mortgage or security interest.
(cf: P.L.2004, c.132, s.88)
14. N.J.S. 3B:28-1 is amended to read as follows:
3B:28-1. Estates of dower and curtesy prior to May 28, 1980.
The widow or widower, whether alien or not, of [a person] an individual dying intestate or otherwise, shall be endowed for the term of [her or] his life of one half of all real property of which the decedent, or another to the decedent's use, was seized of an estate of inheritance at any time during marriage prior to May 28, 1980,unless the widow or widower shall have relinquished her right of dower or his right of curtesy in the manner provided by P.L.1953, c.352 (C.37:2-18.1) or such right of dower or such right of curtesy otherwise shall have been extinguished by law.
(cf: P.L.2004, c.132, s.89)
15. N.J.S. 3B:28-2 is amended to read as follows:
3B:28-2. No right of dower or curtesy created on or after May 28, 1980.
No right of dower or curtesy in real property shall arise if, on or after May 28, 1980, [a person] an individual shall become married, or such person or another to his [or her] use, shall become seized of an estate of inheritance.
(cf: P.L.2004, c.132, s.90)
16. N.J.S. 3B:28-3 is amended to read as follows:
3B:28-3. Right of joint possession of principal matrimonial residence where no dower or curtesy applies; alienation.
a. During life every married [person] individual shall be entitled to joint possession with his [or her] spouse of any real property which they occupy jointly as their principal matrimonial residence and to which neither dower nor curtesy applies. One who acquires an estate or interest in real property from [a person] an individual whose spouse is entitled to joint possession thereof does so subject to such right of possession, unless such right of possession has been released, extinguished or subordinated by such spouse or has been terminated by order or judgment of a court of competent jurisdiction or otherwise.
b. Nothing contained herein shall be construed to prevent the release, subordination or extinguishment of the right of joint possession by either spouse, by premarital agreement, separation agreement or other written instrument.
c. The right of joint possession shall be extinguished by the consent of both parties, by the death of either spouse, by judgment of divorce, separation or annulment, by other order or judgment which extinguishes same, or by voluntary abandonment of the principal matrimonial residence.
(cf:P.L.2004, c.132, s.91)
17. N.J.S.3B:28-3.1 is amended to read as follows:
3B:28-3.1. Joint occupancy of principal matrimonial residence; mortgage lien. The right of joint possession to the principal matrimonial residence as provided in N.J.S.3B:28-3 is subject to the lien of a mortgage, irrespective of the date when the mortgage is recorded, provided:
a. The mortgage is placed upon the matrimonial residence prior to the time that title to the residence was acquired by the married [person] individual; or
b. The mortgage is placed upon the matrimonial residence prior to the marriage; or
c. The mortgage is a purchase money mortgage; or
d. The parties to the marriage have joined in the mortgage; or
e. The right of joint possession has been subordinated, released or extinguished by subsection b. or c. of N.J.S.3B:28-3.
(cf: P.L.2004, c.132, s.92)
18. This act shall take effect on the effective date of P.L.2004, c.132.
STATEMENT
This bill would make certain corrections to the recently enacted P.L.2004, c.132, which revised various sections of the statutory law in Title 3B concerning wills and estates.
Sections 4, 5, 7, 8, 9, 13, 14, 15 and 16 of the bill change the word "person" to "individual" in order to maintain consistency with the provisions of P.L.2004, c.132. Under current law, set out in N.J.S.A.1:1-2, the word "person" includes corporations, companies, associations and other entities. By contrast, the word "individual" is intended to mean a natural person.
Section 3 (N.J.S.A 3B:3-41) is amended to replace the term "will or trust" with the term "governing instrument."
Sections 6 (N.J.S.A.3B:9-4.2) and 10 (N.J.S.A.3B:9-13) of the bill are amended to correct internal cross-references.
Section 11 (N.J.S.A.3B:24-4) is amended to replace the term "person" with "transferee."
The effective date of this bill is tied to the effective date of P.L.2004, c. 132, which was signed on August 31, 2004 and takes effect 180 days after enactment.
The remaining changes are technical in nature.