The New Jersey Home After a Death

What “homestead” means in New Jersey

New Jersey has no homestead exemption and no homestead devise rule. Its law speaks of the principal matrimonial residence — a married individual's right of joint possession with the spouse during life, which a purchaser takes subject to and which ends at the death of either spouse (N.J.S.A. 3B:28-3) — and exempts a veteran's, service member's or military spouse's residences from execution and forced sale (N.J.S.A. 2A:17-17.4). Who inherits the home is decided by the will, the trust, the deed or intestacy.

Who gets the home

In New Jersey the home passes like the decedent's other property — under the will or the trust, by the deed, or by intestacy (N.J.S.A. 3B:5-3) — subject to the surviving spouse's, civil-union partner's or domestic partner's election of a one-third share of the augmented estate (N.J.S.A. 3B:8-1) and the estate's creditors (N.J.S.A. 3B:22-4):

• With a will or a trust that disposes of the home, it passes as the instrument says — subject to the surviving spouse's, civil-union partner's or domestic partner's election of a one-third share of the augmented estate, by a complaint filed within six months after a personal representative is appointed (N.J.S.A. 3B:8-1; N.J.S.A. 3B:8-12).
• Without one, the home passes by intestacy with the rest of the estate — the whole to the surviving spouse, partner in a civil union or domestic partner where no descendant or parent of the decedent survives, or where every surviving descendant is also the survivor's and the survivor has no other; otherwise the first 25% of the estate (between $50,000 and $200,000) plus three-fourths or one-half of the balance to the survivor (N.J.S.A. 3B:5-3) and the rest to the descendants by representation or else to the parents (N.J.S.A. 3B:5-4).
• A home owned with a right of survivorship — including a tenancy by the entirety between spouses (N.J.S.A. 46:3-17.2) — passes to the survivor outside the will; a home titled to a trustee passes by the trust's terms, and a written instrument that names the trust rather than the trustee as transferee is not invalid for that reason (N.J.S.A. 3B:31-19(d)).

Can the home be left by will or by trust? Yes

New Jersey places no homestead restriction on devising a home: the owner may leave it by will or by trust to anyone, subject to the surviving spouse's, civil-union partner's or domestic partner's right to elect a one-third share of the augmented estate within six months after a personal representative is appointed (N.J.S.A. 3B:8-1; N.J.S.A. 3B:8-12) and to the creditors' claims against the estate (N.J.S.A. 3B:22-4).

Creditors and the home after a death

After the owner's death, the home is part of the estate — or the trust — that answers for the decedent's debts: creditors present their claims to the personal representative within nine months after the death (N.J.S.A. 3B:22-4), the decedent's real property remains liable for the debts for one year after the death unless the court lets the personal representative sell it free of them (N.J.S.A. 3B:22-22), and the property of a trust that was revocable at the death answers for the settlor's creditors, the costs of administration, the funeral and the family's claims to the extent the probate estate is inadequate (N.J.S.A. 3B:31-39(a)(3)). Liens and mortgages on the home still apply. Whether particular property is reachable is fact-specific attorney territory.

Property taxes and the inheritance tax

In New Jersey the municipal assessors value property for tax, and no statute in the New Jersey statute library reassesses a home because it changed hands at a death or passed to a trust; a new owner reviews any deduction or exemption with the assessor. The transfer inheritance tax is a separate question: a transfer to a spouse, civil-union partner, domestic partner, parent, grandparent, child or descendant is untaxed, a transfer to a sibling or a child's spouse is taxed above $25,000, and a transfer to anyone else from the first dollar (N.J.S.A. 54:34-2); the tax is due at the death and bears interest after eight months (N.J.S.A. 54:35-1; N.J.S.A. 54:35-3), and no New Jersey estate tax applies to a death on or after January 1, 2018 (N.J.S.A. 54:38-1). A New Jersey attorney can confirm what applies.

What should happen next?

Outcomes turn on facts: who survived, how the deed reads, whether minors are involved, the beneficiary's class for the inheritance tax, and a surviving spouse's election, filed within six months after a personal representative is appointed (N.J.S.A. 3B:8-1). This page is general information, not legal advice. A free role check shows you where you stand, and a New Jersey attorney can confirm how the home passes in your situation.

General information about New Jersey law, not legal advice.