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Defending Estates Against Inflated Spousal Elective Share Elections

Spouses are entitled to up to a third of the estate’s value, including property that was transferred out of the estate up to a year before the decedent’s death. Executors frequently find that the elective share claims can be inflated.

Spouses can claim that property of the estate is worth more than the executor states on their accounting. They will demand all records pertaining to the asset value and will hire accountants and expert witnesses to try to argue that the asset is worth more than it really is.

They can claim that personal assets of the executor are a part of the estate. This especially pertains to the executor’s business interests. If an executor has been in business with the decedent and owns a share of the business, the electing spouse will try to claim that the executor’s interest is also part of the augmented estate.

They can claim that there are more assets in the estate than there really are. Even though there is usually no basis for those claims, they will attempt to look at the executor’s personal assets, and claim that those assets belong to the augmented estate.

They will try to have the executor disqualified and will try to have an independent Receiver or the Public Administrator of the county be appointed as a neutral “Executor” instead. As we wrote here, this is unlikely to work.

They will claim that the executor caused losses to the estate by their conduct, but will refuse to recognize actual losses to the estate.

Spouses can also claim that the expenses of the estate, which are deducted from the value of the estate before spousal share is calculated, are inflated. They claim that attorneys’ fees are too high, even though it is probably their inflated claims that brought about the attorneys’ fees in the first place. They will claim that accounting fees are too high – again, there would not have needed to be accounting fees unless an estate was forced to account. They claim that expenses are unnecessary and pick on any other part of the accounting that is not to their liking in the hope of intimidating the estate executive and forcing them to increase the spousal elective share.

It is possible that a spouse gave up their right to the elective share in a prenuptial agreement or a postnuptial agreement. It is important to see if those documents exist and go over them. It is also possible that the spouse gave up a right to the elective share some other way.

The value of any property that the spouse received from the decedent outside of the estate gets subtracted from the amount they are entitled to as part of the elective share. It is important to investigate what the spouse received outside of the estate. This is sometimes known to the family, can be seen from the decedent’s paperwork, or can even be found out by asking questions under oath during the discovery process of the legal proceeding.

If you are an executor who is facing those challenges from the spouse of the decedent, speak with Albert Gurevich, an attorney who defends executors. Call (212) 233-1233.