When a couple marries later in life, after they both had children of their own, their estate plans need to take their blended family into account. For example, there are estate planning techniques such as a Qtip Trusts that allow income to the surviving spouse for life, with property passing to children upon the surviving spouse’s death. However, some couples maintain separate assets throughout the marriage and want to leave those assets to their respective children, not to each other, upon their deaths. In New York state, you cannot disinherit your spouse without his or her permission and, relying on just a promise invites disaster.
In New York, pursuant to the New York State Estates Powers and Trust Law §5-1.1A, the surviving spouse is entitled to elect against the estate of the deceased spouse in an amount up to $50,000 or one-third (1/3) of the estate, whichever is greater. Therefore, while a couple can certainly execute a Will that disinherits a spouse, the Surrogate’s court will not honor the disinheritance unless the spouse consents to being disinherited beforehand or by chooses not to exercise the right of election. The elective share not only applies to the estate (those assets that are in the deceased spouse’s sole name and pass according to his or her Last Will and Testament or through intestacy) but also to “testamentary substitutes.”
Examples of testamentary substitutes are assets owned jointly with other individuals, assets in trusts or real property with a retained life estate. Life insurance is not included in the calculation and debts are deducted. It is best to have an experienced attorney advise on the calculation of the elective share as it can be complex. The surviving spouse must exercise the right of election by filing documents in the Surrogate’s Court within six months from the date letters testamentary or of administration are issued or no later than two years from the date of death of the deceased spouse if no estate proceeding is filed with the court.
Although a married couple can agree not to elect against the other’s estate and sign a Last Will and Testament to that effect, the only way to legally waive the right of election and ensure that the surviving spouse is bound by the waiver is by executing a post nuptial agreement. If you wish to accomplish your goal and have your assets pass to your respective children instead of to the surviving spouse, you should consult with a family law attorney who can properly draft such an agreement. Those entering into a marriage who know that they wish to disinherit a spouse can also execute a prenuptial agreement before the marriage is legalized.