In New York, a spouse cannot be disinherited from a will, because they are able to claim what’s called an elective share.
This share, which includes assets that would pass in the will and assets transferred within a year of the decedent’s death, gives the surviving spouse the option to inherit part of the estate, even if the testator left a will stating otherwise.
The elective share in New York is $25,000 in cash, one car and either $50,000 or 1/3 of the remaining estate.
The elective share is not automatic. The surviving spouse must still file a claim for it (called the Notice of Election) within a certain amount of time after the decedent’s death. This claim is time-sensitive, and for that reason is better handled with the help of a New York City estate attorney.
Generally, a surviving spouse has a time limit on filing a claim for the elective share. The time limit would be within six months of the appointment of a personal representative for the estate or 2 years after the death of the testator. This is usually done through a New York estate lawyer, especially in cases where there may be litigation involved with other beneficiaries of the estate.
Once the surviving spouse files a claim with the estate, the other beneficiaries sometimes argue that the marriage was somehow an invalid one, meaning that the surviving spouse is not entitled to the elective share. These objections have to be strongly supported by evidence that the spouse is not entitled to the elective share, as may be the case when the surviving spouse and the decedent were in the process of getting a divorce or were legally separated. In any case, the Surrogate’s Court will most often find that the marriage was a valid one rather than let a spouse be disowned in a will.
The other beneficiaries often say that the assets transferred within a year of the decedent’s death have no value and there is nothing to elect the share against. The beneficiaries also claim that the estate’s expenses are so high that what is left to pay the elective share is minimal. The value of the estate needs to be argued with the help of a New York City estate attorney-assisted by a forensic property appraiser.
If you are the surviving spouse, you have to make sure that you file your claim against the estate as soon as possible if you have been deliberately or even accidentally written out of the will. Failure to file your claim by the deadline set forth by New York law could mean that you lose your share to the other beneficiaries of the will.
If you are developing your estate plan, you must keep in mind that there is only one way to disinherit your spouse, that being having a prenuptial or postnuptial agreement before your death, something that you should work with your New York City estate attorney on as part of your estate planning. If you have an agreement in place, then your spouse would not be able to claim his or her elective share. Keep in mind that the reasons behind coming up with a prenuptial agreement or postnuptial agreement don’t have to be an awkward one, but instead could become part of a total estate plan to make sure your estate goes to your children or to meet other financial goals.
If you are dealing with an issue of disinheritance of a spouse, call the Law Offices of Albert Goodwin at (212) 233-1233.