On appeal from the Superior Court of New Jersey, Law Division, Ocean County.
Brody, Ashbey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.
This appeal requires us to interpret the provisions of N.J.S.A. 3B:8-1 et seq. which allow a surviving spouse to elect to take one-third of the "augmented estate" of the deceased spouse.
Adam Friedlein died testate on January 26, 1987, nearly ten years after his marriage to plaintiff Erna Friedlein. The decedent's will directed that the marital home be sold and that the proceeds be placed in a testamentary trust. The decedent's son, defendant Joseph G. Friedlein, was named executor of the estate and trustee. The will further provided that the income from the trust shall be paid to plaintiff during her lifetime and that upon her death the principal and any unpaid income shall be paid to defendant. Decedent devised his remaining assets directly to defendant.
On April 16, 1987, plaintiff filed this action against defendant which sought among other things to fix and allow her elective share pursuant to N.J.S.A. 3B:8-1 et seq. On June 15, 1987, the parties advised the court that they had reached a settlement pursuant to which plaintiff would receive her elective share, which would be calculated after an appraisal of the marital home and a full accounting of the estate's assets. The order formalizing this settlement, which was entered on July 8, 1987, provided that "the within Order shall be deemed a Final Judgment relative thereto and pursuant to N.J.S.A. 3B:8-14."
On September 22, 1987, plaintiff filed a motion "to amend the Consent Order erroneously entered on July 8, 1987." Plaintiff's counsel submitted an affidavit in support of the motion which alleged that his client had decided to take her elective share under N.J.S.A. 3B:8-1 et seq. "without sufficient knowledge or information to fully and satisfactorily make such election" and that "it has now become clear that the election, which plaintiff was forced to make blindly, has resulted in placing her in a worse position than she would have been in had she not been compelled to make that election." Attached to the affidavit was an informal accounting prepared by defendant which
showed that plaintiff's elective share under N.J.S.A. 3B:8-1 et seq. was zero, because the assets she had owned jointly with the decedent, with a right of survivorship, had a value in excess of one-third of the decedent's "augmented estate." In addition, defendant asserted that the effect of plaintiff's election under N.J.S.A. 3B:8-1 et seq. was a relinquishment of her right under the will to receive all income generated from the proceeds of the sale of the marital home.
The trial court denied plaintiff's motion to be relieved from the provisions of the July 8, 1987 consent order. On January 7, 1988, the court entered an order limiting plaintiff's interest in the proceeds from the sale of the marital home to one-half of the income from the corpus, which the court found she was entitled to receive as her "dower interest." See N.J.S.A. 3B:28-1. Plaintiff appeals, contending that the trial court abused its discretion in declining to relieve her from the terms of the July 7, 1987 consent order.
We conclude that both the parties and the trial court proceeded on the erroneous premise that an election by a surviving spouse to take one-third of the augmented estate of the deceased spouse pursuant to N.J.S.A. 3B:8-1 et seq. results in a renunciation of any specific bequests made under the will. Therefore, we reverse.
N.J.S.A. 3B:8-1 et seq., which was enacted in substantially its present form in 1979, L.1979, c. 483, is derived from the Uniform Probate Code.*fn1 N.J.S.A. 3B:8-1 gives a surviving spouse a right to elect a one-third share of the deceased spouse's "augmented estate." A decedent's "augmented estate" consists of the net estate at the time of death, plus property which the decedent transferred without adequate consideration before death, N.J.S.A. 3B:8-3, property which the surviving spouse transferred to third parties without adequate
consideration, N.J.S.A. 3B:8-6b, and property owned by the surviving spouse at the time of, or as a result of, the decedent's death, N.J.S.A. 3B:8-6a. All of the surviving spouse's property "is presumed to have been derived from the decedent except to the extent that any party in ...