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What can you do if your spouse disinherits you? Is there a law that protects you? The answer is in the spousal right of election in New York. 

In this article we are going to tell you everything you should know about the spousal right of election in New York. Remember that our New York estate planning attorney has over 30 years of experience serving all 5 boroughs of New York. If you need to know the best options available in your situation, do not hesitate to contact us right now.

Legal definition of the spousal right of election in New York in 2021

When it comes to protecting the inheritance rights of a spouse, New York law is very clear: Whether a spouse dies with or without a will, they are entitled to an “elective share” of assets.

These are defined as the greater of $ 50,000.00 or one third of the equity that includes:

  • Joint bank accounts and;
  • Certain assets known as testamentary substitutes (Pursuant to New York Estates Power and Trust Law Section 5-1.1-A): These include gifts causa mortis or within one year of death, pay on death registration accounts or Totten trusts, joint accounts, revocable transfers, or transfers with a retained income interest amongst others.

The surviving spouse who has not inherited assets that are at least equal to the elective share of the estate can file the spousal right of election in New York.

If you are a spouse and you feel you are not being treated fairly in a will, make sure you obtain advice from our experienced estate attorney:

  • We can calculate your elective share;
  • Determine whether you should move forward and file the right of election with the Surrogate’s Court.

Can I disinherit my spouse in New York?

No, under New York law, a decedent cannot completely disinherit a spouse to whom they were legally married at the time of their death.

Does a surviving spouse automatically inherit everything in New York?

If a person is legally married at the time of their death, the surviving spouse will automatically inherit a percentage of their assets. This occurs even if the spouse has been intentionally excluded from the deceased person’s will or trust.

As we have seen previously, New York law prohibits residents from completely disinheriting a surviving spouse. In short, in New York State you cannot disinherit your spouse without going through a specific process that involves the spouse.

when someone dies who is responsible for their debt

In these matters that involve inheritances and wills, many questions may arise for which we have answers on our website: When someone dies, who is responsible for their debts?, What happens if you had a joint bank account with your parents and your parents die? You will find extensive information in the previous links and you also have the legal support of experienced Latino lawyers in New York in a professional consultation. Send us an email, call us or book an online consultation with our lawyer.

Statute of Limitation (Time Limit) for Filing a Spousal Right of Election

The statute of limitations for filing a spousal right of election is 6 months after the administrator or executor of an estate has been appointed.

Note: Even in cases where there is a prenuptial agreement, they should be evaluated as soon as possible as the court could annul the agreement as unfair.

Having an experienced estate litigation attorney on your side is essential to obtaining the best result. Each case is as unique as the individuals and families involved.

Note: Learn the difference between an executor vs an administrator, the difference between an executor and a trustee and the legal role of an executor of the estate in New York.

Is it possible to contest a spousal right of election?

Litigation is sometimes necessary to protect your right to an inheritance as a surviving spouse. The opposition may allege the following:

  • Incest;
  • A final judgment of separation;
  • Failure of the surviving spouse to support the deceased during their lifetime;
  • That their marriage was invalid;
  • That you left your spouse during the marriage or;
  • You waived your right of election in a pre-nuptial or post-nuptial arrangement. Often these agreements contain a clause that waives the right of election. 
    • For these waivers to be valid they must have been understood, accepted and signed.
    • The judge can find that either party signed the agreement without fully understanding it and could ignore the agreement entirely, which would include the waiver of the right of election.
    • Additionally, if it is determined that the spouse “abandoned” the deceased spouse, he or she will be disqualified from qualifying for the right of election.

What happens in the event of death with a valid last will and testament?

  • Although the deceased spouse’s will explicitly disinherits the surviving spouse, the surviving spouse will not be disinherited contrary to the common belief..
  • The same is true if the will does not contain any bequest to the surviving spouse.
  • As a general rule, the surviving spouse will have the ability to file a right of election in the Surrogate’s Court probate proceeding to receive the assets equivalent to the elective portion.
  • This right of election must be presented within 6 months of the Surrogate’s Court’s appointment of the executor and the issuance of letters testamentary in New York.
rights of the surviving spouse in new york

If the right of election is presented on time, the judge may recover bequests left to the other beneficiaries to satisfy the interests of the spouse.

As soon as this occurs and once the spouse’s elective share is satisfied, the remaining estate will be distributed according to the deceased spouse’s will.

What happens in case of death without a valid last will and testament?

  • If there are no children, the surviving spouse receives the first $ 50,000 and then half of the remaining estate.
  • Through bloodlines the remaining portion of the inheritance then goes to the children of the deceased spouse.
  • The surviving spouse must make use of the spousal right of election in New York within 6 months if the letters are issued or within 2 years after the death of their spouse.

Note: The surviving spouse may present a right of election in case the majority of the assets go through probate surrogates that are not covered by the intestate distribution law. Check out our New York intestacy law article to find out all about it. To learn more about the difference between dying with and without a will, check out our article “testate vs intestate”. 

Loopholes claiming the lack of money in the estate for the right of election in New York

To exclude the spouse and take money out of the estate, some people try to plan their estate to minimize the spouse’s right of election. New York lawmakers are aware of this and will try to close these loopholes.

spousal right of election in new york state

Property transferred within one year of death: This is considered subject to the spouse rights of election. Defenders of the will will claim the following:

  • The decedent does not own the property;
  • It is not part of the estate and therefore is not subject to the estate rules.

However, this claim will likely not work as New York law has a provision whereby the surviving spouse can recover property given away by the deceased and taken out of the estate within one year of their death. This property is considered part of the augmented estate for the purpose of calculating the amount of the right of election due to the surviving spouse.

Claiming that the right of election cannot be satisfied because the estate has no money: The most complex part of the right of election is the accounting procedure. The executor will try to use accounting tricks to claim that the estate does not have the money to pay the right of election.

Property passing outside of probate: The other heirs may claim that part of the deceased’s property is not part of their estate. Although it is true that the testamentary substitute property is not a part of the probate estate, it is part  of the augmented estate. Therefore, it counts in calculating the right of election that the surviving spouse has.

Note: If you are concerned about these legal loopholes, our New York probate lawyer will be able to guide you to achieve the best result.

Loopholes that state that the spouse does not qualify for the right of election

The following are essentially loopholes that the proponents of a will use to defend against the surviving spouse’s exercise of a right of election.

  1. There is a prenuptial or postnuptial agreement: Although a prenuptial or postnuptial agreement invalidates the rights of a spouse to claim an estate, this loophole is itself subject to loopholes. Examples are:
    1. One of the spouses was forced to sign it;
    2. One of the spouses did not know what they were signing.
    3. The prenuptial agreement is extremely unfair and wasn’t signed until the couple got married.
    4. One of the spouses lied when disclosing their assets prior to the prenuptial agreement.
    5. One of the spouses did not have their own independent attorney to effectively review the agreement.
  1. The marriage was invalid: This right of election defense is commonly used in cases where the claim for estate comes from a surviving spouse much younger than the deceased spouse. It is often used as an assumption that the deceased spouse was too ill to consent to the marriage.
  1. You abandoned your spouse: This loophole often arises when the surviving spouse and the deceased spouse were in the process of divorce but the deceased died before it could be completed. Since an incomplete divorce is not a divorce, the spouse is entitled to the spousal right of election in New York unless the other heirs can prove abandonment. For this, it is not enough to show that they were not getting along even if they were no longer living together when the death occurred.

What about the Business of the decedent?

This is an important heritage asset. In these cases, if the business is taken over by the children of the deceased, the spouse must act consistently. You should ask your New York probate attorney to perform a forensic appraisal of the business and claim the business as part of the estate. The goal is to be able to determine the share of the surviving spouse.

Spousal right of election in New York and second marriages

rights of the spouse in new york and second marriages

Among the motivations that lead one spouse to decide to disinherit another, one of the most common is when two people contract a second marriage and one or both want to leave their property to their child from a previous relationship.

In life, each can promise to have no interest in the other’s estate, but this does not prevent the surviving spouse from changing their mind about the death of the first spouse. It would therefore go against the wishes of the deceased spouse and cause problems in the administration of the deceased spouse’s estate.

In summary, it is important to do a complete estate plan review before and after a second marriage. In this way, it can be guaranteed and protected that the assets of each spouse are distributed according to the wishes of both.

The legal resource of challenging the will 

In situations where the surviving spouse is disinherited or has diminished participation, a challenge to the will is often filed. This may be based on one of the following accusations:

  • There was undue influence in wills on the deceased spouse with the aim of disinheriting the surviving spouse;
  • The deceased spouse was too ill to sign the will;
  • The will was a forgery;
  • The will was not done correctly.

By challenging a will, the surviving spouse accuses the beneficiaries of the will of interfering with the deceased spouse’s wishes to include it in their estate plan.

Note: On our website you can read a complete article dedicated to all the steps in contesting a will and also learn if the executor has to show accounting to beneficiaries

Defend your rights in a New York estate with the spousal right of election

If you need to take legal action to protect your right to receive an inheritance, set aside a claim against an estate, or contest a will, we can help you.

Our law firm is dedicated to inheritance rights and the protection of individuals who are legitimate recipients of inheritances, we provide advice to both petitioners and defendants in disputes over the spousal right of election in New York. Whether it’s safeguarding the rights of a spouse or challenging those of a surviving spouse, we can help.

New York right of election laws are really complicated, and experience in the Surrogate’s Court practice is key when dealing with those claims. With 30 years of experience our New York inheritance lawyer can help you in all 5 boroughs of New York. Whether you are in The Bronx, Brooklyn, Manhattan, Queens or in Staten Island. Feel free to let us know about your specific situation.