As a widow, you have the right to receive a portion of your late husband’s estate. Even if he did not leave a will. Even if he left a will but left you out of it. And if he transferred property to other people before he died, you have the right to get a share of that property as well.
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If Your Husband Did Not Leave a Will
Many people die without a will. Due to our busy lives, we may not have the time to plan our estate. If your husband died without a will, New York law determines your share of his estate, as follows:
If your husband died without a will and he did not have children – you will receive the entire estate.
If your husband died without a will and he did have children – you will receive $50,000 plus 50% of the rest. The remainder will be shared between the husband’s children.
It does not matter if the children are yours or the late husband’s alone. If the children but left grandchildren, the children’s portion of the estate is distributed among the grandchildren.
A wife’s share of an estate of a husband who died without a will is called “the intestate share.”
The right to manage your late husband’s estate if he died without a will – In addition to a right to a share of your husband’s estate, you are also the person whom the court will most likely as “the estate administrator” – the person who manages your late husband’s estate. This will give you control of the estate’s assets and will make you the person responsible to collect the assets, pay debts, and distribute the remainder to his heirs, including yourself. This does not happen by itself, and we recommend that you select a New York estate lawyer to represent you in the process.
If Your Husband Short-Changed You in His Will
If your husband short-changed you in his will or left you out entirely, you still have the right to receive a share of his estate. This right, called the “elective share,” overwrites the will.
If your husband left you out of the will and he did not have children, you have the right to ½ of the estate.
If your husband left you out of the will and he did have children, then you have the right to 1/3 of the estate.
This elective share right requires that your estate lawyer files a document called “notice of election.” There is a serious deadline involved. You have to file the notice of election within six months of the appointment of the executor of the estate and within two years of your husband’s death. Those documents will not file themselves, so you are well-advised to seek the advise of an estate attorney who can help you file the right notices and avoid missing the deadline.
We have seen wives who were short-changed in their husband’s will in favor of children from a first marriage, other relatives, or even mistresses. If that happened to you, remember that you still have the right to claim ½ or 1/3 of your late husband’s estate.
We have also seen people benefitting from the will trying to place obstacles to the widow collecting her elective share. If that happens, you will need your estate attorney to proceed with asking for an estate accounting, filing a proceeding to discover assets subject to your elective share, and filing a motion to confirm and rarify your elective share.
Instead of taking 1/3 or ½ of your late husband’s estate, you also have the option of taking $50,000, which would make more sense in smaller estates.
If Your Husband Transferred Out His Property Before He Died
If your husband transferred property to other people before he died, you still have the right to claim your elective share against that property. This right applies to property transferred within a year of his death. The property is treated as a part of the estate.
Unfortunately, You May Have Given Up Inheritance Rights if You Signed a Prenup
If you signed a prenuptial agreement or a postnuptial agreement giving up your rights to your husband’s inheritance, then you have given up on the rights discussed here. You will not be able to claim the intestate share or the right of election. This is because you can give up your right to an inheritance. If you did, it’s your choice. However, if you did not realize that you are giving up your inheritance rights, get in touch with a lawyer to explore the possibility of setting aside the prenup.
Your Right to Certain Domestic Property No Matter What
You and your husband’s children under 21 have the right to receive certain domestic property no matter what his will says and no matter what any probate proceeding involves. That property includes all of the following, up to a total combined value of $56,000:
- Up to $10,000 in household items, electronics and furniture
- One motor vehicle with a value of up to $15,000
- Up to $15,000 in money or other personal property
- Up to $1,000 in items having sentimental value
- Up to $15,000 in farm property
This is called “exempt property,” because the property is not a part of the probate process and is therefore “exempt” from being taken away from you and the children by a will or a probate proceeding.
Do Not Ignore Your Rights to Your Late Husband’s Estate
As a widow, you have important rights in your late husband’s estate:
- Intestate Share if your husband died without a will
- Elective Share if your husband short-changed you in the will
- Exempt Property Set-Aside for household items that pass outside of probate
Call the Law Offices of Albert Goodwin at (212) 233-1233, New York estate, guardianship, wills, trust, Medicaid and probate lawyer, and make an appointment to discuss spousal claims and rights to the estate.