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Inheritance is the practice of passing property upon the death of a decedent. The rules of inheritance differ from state to state.
October 24, 2018

Inheritance is the practice of passing property upon the death of a decedent.  The rules of inheritance differ from state to state.

In New York, a decedent generally cannot disinherit his spouse.  This principle is governed by Estates, Powers and Trusts Law Section 5-1.1-A (Right of Election by Surviving Spouse) and requires that the surviving spouse receive a portion, or share, of the decedent’s estate.  The surviving spouse’s share will be equal to the greater of $50,000 or one-third of the decedent’s estate.

The right to elect to take your spousal right of election is governed by time frames.  An election under this section must be made within six months from the date letters testamentary are issued but no later than two years after the date of the decedent`s death.  A written notice of the election is required to be served upon the executor, or upon the person named as executor in the Will if the Will has not yet been admitted to probate.  The written notice must then be filed and recorded with the Surrogate`s Court.

Conversely, a decedent can disinherit a child.  However, it is important to note that a child falls into a certain class of individuals who have the right to contest your Will even if they are specifically disinherited, whether or not they are named as a beneficiary under your Will or if they were left with a disproportionate share of your estate.  A disinherited child has the right to challenge or contest your Will because, if you died without a Will, your child would receive a share of your estate through the laws of intestacy.

However, there are planning tools an individual can employ to potentially safe guard wishes after death. An in terrorem provision in a decedent’s Will “threatens” that if a beneficiary challenges the Will then the challenging beneficiary will be disinherited instead of inheriting the full gift provided for in the Will.  An in terrorem clause is intended to discourage beneficiaries from contesting the Will after the testator’s death.  New York law recognizes in terrorem clauses, however, they are strictly construed.

Keep in mind that simply having an in terrorem clause in your Will may not be enough to dissuade beneficiaries from potentially challenging your Will.  Theoretically, however, for an in terrorem clause to have any weight at all, a beneficiary under a Will must be left a substantial amount to incentivize their compliance with the Will.  An in terrorem clause may have no effect on a beneficiary who was not left anything under a Will as they risk losing nothing by challenging the Will.  While in terrorem clauses may be effective in minimizing a Will contest, for some it holds no power.

As with many things in life, one size does not fit all.  A successful estate plan takes all personal and unique factors to an individual into consideration.  The documents are only part of the problem and solution.  The fact is, there is no substitute for competent legal advice.


– Nancy Burner, Esq. and Maria Johnson, Esq.