What Snowbirds Need to Know About the Substantive Differences Between New Jersey and Florida in Probate Administration, Homestead Protections, and Spousal Rights
Probate Process in New Jersey vs. Florida
The probate processes differ greatly between New Jersey and Florida. A valid will that is easily probated in New Jersey may face more procedural hurdles in Florida, including mandatory court appearances and additional documentation.
New Jersey Probate:
New Jersey’s probate process is simple, informal, and relatively efficient. The Surrogate’s Court handles most routine probates and offers an informal, expedited procedure for uncontested wills. Engaging an attorney is recommended and can streamline the probate process. However, it is not mandatory in New Jersey to have an attorney involved. Personal representatives called “executors” may proceed without counsel. In addition, there is no statutory waiting period. If there are no creditor disputes or delays, assets can be distributed sooner than with Florida probates
Florida Probate:
The probate process in Florida is more complex and formalized. Florida requires more judicial oversight. Most estates are administered through either formal administration or summary administration (for smaller estates). On many cases, the personal representative should be represented by an attorney. Because of creditor notice rules, an estate in Florida cannot close in fewer than three months.
Homestead issues often complicate probate and the distribution of the homestead may require a separate court determination of its exempt status.
Homestead Protections in New Jersey and Florida
While New Jersey has homestead laws, they are not as robust or as complicated as in Florida.
New Jersey Homestead Protections
In New Jersey, there are no constitutional homestead exemptions. Therefore, New Jersey residents cannot be the recipient of automatic, broad homestead protections from creditors. Homestead rights in probate are limited to only include surviving spouses who may have certain statutory rights (such as elective shares), but not a unique "homestead" interest as in Florida.
Florida Homestead Protections
In Florida, homestead laws offer strong constitution protection and guard the decedent’s primary residence from most creditor claims—even after death. In addition, there are restrictions on how an owner can devise, or give by will, their homestead property. If the decedent is survived by a spouse or minor child, the homestead cannot be devised to anyone else, even if the will says otherwise. Also, spousal interest is preserved. A surviving spouse(s) may receive a life estate in the homestead or elect a 50% interest.
Spousal Rights: New Jersey vs. Florida
New Jersey and Florida handle spousal rights differently. A spousal disinheritance that may be upheld in New Jersey could be ineffective in Florida due to stronger statutory protections in the state.
New Jersey Spousal Rights
In New Jersey, the elective share law protects a surviving spouse from being disinherited. An elective share is a legal right that allows a surviving spouse to receive a specific portion of their deceased spouse's estate, even if the deceased spouse's will disinherits them. In New Jersey, a surviving spouse may claim a one-third share of the elective estate. However, this elective share law has been criticized as weak, since it can be diluted by non-probate transfers that bypass the need for court involvement and can speed up the transfer of assets to beneficiaries.
For property, New Jersey and Florida follow the common law system of property ownership, which has a significant impact on estate planning. This means that unlike the nine community property states (such as Texas and California), each spouse owns property individually unless it is jointly titled. Further, there is no presumption that property acquired during a marriage is jointly owned.
Florida Spousal Rights
Florida’s elective share is more robust than New Jersey's because it offers more protections, exceptions, and allowances for spouses. First, a surviving spouse may claim 30% of the elective estate, which includes many non-probate assets (e.g., revocable trusts, joint accounts, retirement plans). In addition, Florida protects spouses (pretermitted spouse rights) who married the decedent after the will was executed, entitling them to an intestate share, a portion of an estate that an heir receives when the deceased person died without a will, even if there is a will. Lastly, Florida offers a suite of spousal protections, including entitlement to certain exempt personal property and a family allowance, cash distribution from the estate for the surviving spouse and/or the decedent's dependent lineal heirs for expenses during probate.
Although New Jersey and Florida share some similarities as common law states, they differ significantly in how they handle probate administration, homestead rights, and spousal protections. A failure to update your estate plan after changing your domicile can result in delays, disputes, unintended distributions, or loss of valuable benefits. Consulting an attorney licensed in your new state of residence is not just recommended—it’s essential.
Courtney E. Dolaway, J.D., LL.M. (taxation) is a member of Flaster Greenberg’s Trusts & Estates, Taxation, and Business & Corporate Departments, and chair of the Women's Initiative Committee. With a deep understanding of the legal and emotional complexities that come with planning for the future, Courtney is committed to guiding you and your family through the estate planning process with clarity, compassion, and trusted legal insight to ensure your wishes are clear, followed by your loved ones, and estate taxes and other burdens are minimized.
Her practice focuses on standard and complex estate planning, including wills, trusts, powers of attorney, and health care directives, along with estate administration, business succession, and general corporate matters. She is particularly skilled at navigating larger estates as well as estate matters that have potential litigation. Whether you are looking to protect your legacy or settle an estate, Courtney offers a responsive and reassuring presence during times that can often be uncertain or overwhelming. She also assists and advises family members and other key individuals in the creation and management of nonprofit organizations to help them further their charitable missions.
Flaster Greenberg has offices in New Jersey and Florida.
