Can A Spouse Be Disinherited?

Written By: Michael S. Haber

Summary:  New York provides a method to prevent
a person from completely disinheriting a spouse

1    Not All Marriages Made In Heaven

Most people provide in their wills for their spouses to receive much, if not all, of their
estates.  But, as you know, not every marriage is made in heaven – some are made in
                                    a decidedly less pleasant place.  And thus there are some 
                                     people who try to disinherit their spouses.

                          2    NY Law Provides For 1/3 To Spouse

                                                            New York, like most states, tries to prevent one from leaving his
                                    or her spouse completely out of the estate.  New York's statute
                                     says that a spouse must be awarded the greater of $50,000 or
                                    one third of the estate.  That means that if the estate is worth
                                    $150,000 or less, the spouse will receive $50,000, and more 
                                    than that if the estate is valued at greater than $150,000.   This
                                    law has traditionally been known as the “widow’s right of
                                    election,” but has been modernized so that the statute is now
                                    gender-neutral, referring instead to the “surviving spouse.”  The
                                    current statute was enacted more than 20 years ago.

3    How To Exercise The Right

To exercise the spouse’s right to receive his or her “elective share,” a notice of election must be filed and served within six months of the time that the court appointed an executor (or, in cases in which there is no will, an administrator), but in any event within two years of the death of the spouse.  [Even if there is no will, a decedent may have tried to set up his or her finances in a way in which there were joint accounts with, or beneficiary designations of, persons other than the surviving spouse.

4    Marital Separation As One Example

In my own experience, one situation in which the right of election is often exercised is where the spouses were separated at the time of the decedent’s death, but the divorce had not as yet been finalized or even started.  A mere separation (in the absence of an agreement stating otherwise) will not by itself waive the right of election.

5    Recommendation

It is strongly recommended that one engage an attorney to handle this, especially because missing the deadline can potentially be very costly.
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