How Do New York State’s Statutes Protect Surviving Spouses?

New York law does not allow a husband or wife to disinherit their surviving spouse entirely. If a surviving spouse has not been appropriately provided for in the decedent’s will, they usually have the right to seek a percentage of the estate’s assets, even if those assets have been bequeathed to other individuals. A skilled New York inheritance attorney can guide you through the legal process of recovering your share of an estate as a surviving spouse.

What Happens if a Surviving Spouse Has Been Disinherited in a New York Will?

Under New York’s Estates, Powers & Trusts Law § 5-1.1-A, a surviving spouse has the right to an “elective share” of the deceased spouse’s estate. This right overrides any terms of the will that may have disinherited the spouse or otherwise left them without adequate financial provisions. The elective share is the greater of $50,000 or one-third of the decedent’s net estate. If the value of the net estate is $50,000 or less, the surviving spouse is generally entitled to all the estate’s assets.

The net estate includes not only probate assets, like real estate and vehicles, but also many non-probate assets, such as:

  • Joint bank accounts
  • US Savings bonds
  • Some pensions and retirement accounts
  • Certain outright gifts made in the last year before death

The net estate does not include life insurance policies. Calculating the net estate requires adding the value of the applicable assets and subtracting the estate’s debts, reasonable funeral costs for the decedent, and estate administration expenses. Estate taxes are not deducted for the purpose of this calculation, but the surviving spouse will still be responsible for paying their share of any applicable taxes. Determining the correct elective share can be confusing, particularly if the estate includes a variety of complex assets. Consulting with a knowledgeable inheritance attorney is vital to ensuring you receive the elective share you are entitled to.

What Rights Does a Surviving Spouse Have if The Decedent Died Without a Will?

If a decedent passes away without a valid will, their estate must go through the Surrogate’s court, and their assets will be distributed according to the state’s intestacy laws. Under New York State law, if a married individual with biological or adopted children dies intestate, the surviving spouse is entitled to the initial $50,000 of the estate plus half of any remaining estate assets. Whatever is left over will be split evenly between the surviving children. If a child of the decedent passes before their parent but has children, these grandchildren of the decedent can inherit in the child’s place. If the decedent had no offspring, their spouse would inherit the entire estate.

How Long Does a Surviving Spouse Have to Claim Their Elective Share?

A surviving spouse does not automatically receive their elective share of an estate. To claim their rightful inheritance, the surviving spouse must file a notice of election within six months of the issuance of letters testamentary or letters of administration by the Surrogate’s Court. If no letters are issued, a notice must be filed within two years of the decedent’s death, unless the court extends that deadline if a good cause is shown. Failing to take prompt action can cause the eligible spouse to lose their right of election entirely, so it is critical to seek legal advice as soon as possible if you believe you may have a claim.

What Are Common Exceptions to New York’s Spousal Inheritance Rules?

New York law generally provides robust protections for surviving spouses to ensure they receive a minimum inheritance, even if the deceased spouse’s will attempts to disinherit them. This public policy keeps married individuals from experiencing undue financial turmoil following their spouse’s death. However, exceptions to these laws exist. A surviving spouse in New York may be barred from claiming an elective share in the following circumstances:

  • The spouses were divorced at the time of the decedent’s death.
  • The surviving spouse knowingly signed a valid prenuptial or postnuptial agreement waiving their right to an elective share.
  • The surviving spouse abandoned the decedent, and the abandonment continued without reconciliation until the decedent’s death.
  • The decedent was mentally incapacitated at the time of the marriage and was legally unable to consent, rendering the union void.
  • The surviving spouse failed to file a notice of election within the required time frame.
  • The decedent had property or an inheritance that was never commingled with marital property or gave gifts with the surviving spouse’s consent. These factors would not bar the spouse from claiming an elective share but would reduce the value of the available net estate.

Complications may also arise if the surviving spouse is a non-resident alien whose country of origin has substantially different inheritance laws from the U.S. The situations leading to a surviving spouse having to make a claim for their elective share of an estate can be complex and emotionally intense. If you anticipate that there could be objections to the exercise of your right of election from family members, enlisting the assistance of a trusted estate law attorney who can uphold your rights is essential.

How Can an Experienced Attorney Assist You as a Surviving Spouse?

It can be a painful shock for a surviving spouse to discover that their husband or wife neglected to include them in their will or, worse, intentionally disinherited them. The unexpected passing of a person with no estate plan in place can also cause stress and worry about the future for the surviving spouse. Attempting to handle these emotionally fraught circumstances alone can feel overwhelming.

It’s key to remember that even if your spouse disinherited you, you likely still retain the right to an elective share of their assets under New York’s estate laws. A compassionate inheritance attorney from Ortiz & Ortiz, LLP can evaluate your situation and help you recover the portion of your deceased spouse’s estate that you are entitled to by law. To schedule a no-obligation strategy session with our knowledgeable legal team, contact our office today at 917-920-6437.