A decedent’s will or trust will dictate the disposition of a decedent’s assets. However, under New York laws, the decedent cannot disinherit a surviving spouse from the decedent’s estate, even under a valid New York will. Under the spouse’s right of election, the surviving spouse is always entitled to at least one-third of the augmented estate of the decedent.
The surviving spouse, who is married to the decedent at the time of the decedent’s death, has the legal right under New York law to file what is called a “spouse’s right of election notice” with the New York Surrogate’s within six months after the will is accepted for probate by the court, and no longer than two years after the deceased spouse’s death.
However, there are five conditions that may result in the disqualification of a surviving spouse to receive an inheritance under the New York elective share:
• The marriage is not valid under New York law
• There is a final judgment of separation
• Abandonment by the surviving spouse
• Failure of the surviving spouse to support the deceased during their lifetime
• There is a valid pre-nuptial or post-nuptial agreement signed by the surviving spouse waiving his or her right to the other spouse’s assets and estate
Since New York inheritance and surviving spousal rights issues are complicated, it is recommended that you consult with a New York estate and probate attorney, for help with spousal inheritance rights issues and/or protection of beneficiary’s rights of inheritance, and other estate and probate matters. If you wish to speak to a New York estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.