Question: My spouse recently passed away and I just learned that he disinherited me in his Will. What rights do I have?
Answer: 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.
Of course, there are limitations to the spousal right of election. For instance, the right will generally be severed if a final decree of divorce or separation has been entered. Further, the right of election can be waived in a pre-nuptial or post-nuptial agreement. It is important to note that, for these agreements to be upheld and enforced, both parties to the respective agreement should be represented by counsel of their own choosing who can properly advise them of their rights. Finally, abandoning a spouse before death will disqualify you from your right to elect against the pre-deceased spouse’s estate.
The New York spousal right of election can be complicated. Whether you are contemplating disinheriting your spouse in your current estate plan, or if you find yourself in a position where you are the disinherited spouse, it is very important to consult with an estate planning or estate administration attorney, as the case may be, who can provide you with proper counsel.
– Nancy Burner, Esq. and Maria Johnson, Esq.