In New Jersey, it is permissible—and emotionally common—for divorcing parents to express the intention of leaving some or all of their assets to their children within a settlement agreement. However, whether such provisions are legally binding and enforceable depends on how they are worded, how they are implemented, and whether appropriate legal tools are used to support them.
First, it’s important to understand that the primary legal function of a settlement agreement is to govern the division of marital property, alimony, child custody, child support and parenting time. If a party includes a statement such as “I agree to leave my assets to the children in the future,” it is generally considered a moral commitment or expression of intent—not a legally enforceable estate planning arrangement. Under New Jersey law, individuals enjoy broad testamentary freedom and may freely dispose of their property during life or at death through wills or trusts. If the divorcing party does not take steps outside the agreement—such as executing a will or establishing a trust—to implement the agreed-upon arrangement, the promise to “leave assets to the children” may not be enforceable after their death.
In other words, a divorce settlement agreement alone cannot restrict how a party may dispose of their property to their children in the future. For example, if a spouse agrees in the settlement to leave the marital home to the children upon death but later changes their will and leaves it to someone else, that action may be ethically questionable but could still be legally valid—unless there is clear evidence of fraud or breach of contract. Therefore, to ensure that the intention to leave assets to children is actually carried out, it is necessary to use estate planning tools such as a will, a trust, or a legally binding transfer agreement.
In addition to post-death arrangements, parents may also agree in the divorce settlement to transfer assets to children during their lifetime, either immediately or at a designated time. Examples include:
- Transferring title to a home into a trust with the children as beneficiaries after the divorce;
- Depositing a specific amount of money into a child’s education trust or a 529 college savings account;
- Designating an investment account to be used exclusively for the child’s education or medical expenses, with one parent acting as trustee.
The advantage of such lifetime transfers is that they are more direct and controllable, not dependent on future events such as death, and can provide real-time support during the child’s formative years. However, these arrangements must clearly define the type of assets involved, timing of transfer, management structure, and permissible uses to avoid complications—especially when children are still minors or lack financial maturity. Establishing a trust is often recommended to carry out these provisions properly.
In conclusion, marital settlement agreements in New Jersey may include statements of intent regarding the future financial support of children. But to ensure those intentions are legally enforceable, they must be accompanied by proper estate planning instruments such as wills, trusts, or asset transfer agreements.
This column is for reference only and does not constitute legal advice. For guidance on your specific situation, please contact 201-461-0031, WeChat: songlawfirm, or arrange a consultation via email at mail@songlawfirm.com.
