Does Taking a Spouse Out of a Will Work in New York

There are lots of reasons why someone would desire to leave their spouse out of their will. Not all of them even involve reasons that are spiteful or because one spouse wants to “get back” at the other. Unlike what many people may believe, however, a will is not a document that must be followed under any circumstances, meaning that there are laws that could circumvent what is requested by the decedent in the will. One place where the will of the decedent would be trumped by law happens to be in the case of disinheriting a spouse.

Completely disinheriting a spouse is virtually impossible under New York law.

When it comes to estate planning where someone would desire to limit what is being left to a spouse, contacting a New York City estate attorney is necessary so that you can avoid having your will later be the subject of litigation.

New York has what is called an “elective share” for spouses. This share, which is set forth by statute, dictates that a surviving spouse is entitled to either $50,000 or 1/3 of the total estate of the decedent, whichever is more. This is regardless of what the will says or if the decedent died intestate.

This means that writing a will that would leave out the surviving spouse, either accidentally or on purpose, or which leaves the surviving spouse less than what they are entitled to by law would not be followed the way the will was written. For example, if one spouse attempts to leave 90% of his or her estate to his or her children, and the spouse applies for the elective share, the award to those children would be reduced to reflect the 1/3 that the spouse is allowed to take under New York law.

There are some things that a New York City estate planning attorney can do to limit the amount that a spouse can collect from the estate, but there is a catch. With a nuptial agreement, either a prenuptial agreement (signed before the wedding) or a postnuptial agreement (signed after the wedding) a spouse can agree not to go after their elective share. However, this is also a complex legal process where both parties should have legal counsel and the agreement is properly drafted and signed.

The best way to make sure that a spouse doesn’t inherit anything, assuming they will not sign away their rights, is through a divorce. As soon as there is a judgment of divorce in place, the spouse becomes an ex-spouse and is therefore no longer entitled to their elective share. However, this is only in the case of actual finalization of a divorce, not in the cases where a divorce is in progress but not finalized.

When it comes to estate planning, only a New York City estate attorney will really be able to tell you what the options are when it comes to how your property will be inherited. Whenever you are considering disinheriting a spouse, or even a child, it is best that you have legal counsel so that you can be sure that your wishes are met after your death and your will does not become the subject of painful and lengthy litigation. You can call the Law Offices of Albert Goodwin at (212) 233-1233 and schedule an appointment.