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Spousal Elective Share New York

Elective Share New York

If your spouse left you out of the will, then you have the right to New York spousal elective share to one-third of their estate. People leave their wives out of wills in favor of children from a prior marriage. If your spouse left a will cutting you out, you have a right to an “elective share” of the first $50,000 or 1/3 of an estate if the person who died had children, or the first $50,000 or ½ of the estate if the person who died did not have children. [1]

“Loopholes” Claiming that there is No Money in the Estate

There are ways that people try to plan their estate in order to exclude their spouse and take money outside of the estate in an attempt to avoid the elective share. New York lawmakers are aware of those attempts and have done their best to close those loopholes. [2]

Property Transferred Within a Year of Death – Property transferred within a year of death is considered subject to the spousal elective share in New York. The defenders of the will are going to claim that the decedent does not own the property and it’s not a part of the estate and not subject to the estate rules. Still, the claim is not likely to work, as New York law has a “claw-back” provision whereby the surviving spouse can recapture the property gifted by the decedent and taken out of the estate within a year of his death. Such property is considered to be a part of the “augmented estate” for the purposes of calculating the amount of spousal elective share due to the surviving spouse.

Property passing outside of probate – The other heirs may claim that some of the property of the person who died is not a part of their estate. While it is technically accurate that “testamentary substitute” property is not a part of the probate estate, it is nevertheless a part of the “augmented estate”. It is therefore countable towards calculating the New York elective share that the surviving spouse is entitled to. This property includes joint bank accounts, assets transferred to trusts, pension plans insurance policies where the surviving spouse is not the beneficiary.

Claiming that the estate has no money to satisfy the elective share – Establishing the right to an elective share is only the first step of the problem. The hardest part of the elective share is not the elective share New York proceeding, but the accounting proceeding. The executor will try to use accounting tricks to claim that the estate does not have the money to pay for the spousal elective share. They will try to “zero out” the estate. Legitimate expenses are taken into account and deducted from the total amount of the estate used to calculate the size of the elective share. But unnecessary expenses, accounting tricks, and money paid to the proponents of the estate are usually not allowed by New York Surrogate’s Court to be deducted from the amount of the estate for the purposes of calculating the elective share.

“Loopholes” Claiming that the Spouse is Disqualified

The next set of loopholes is grounds to override the elective share in New York. The proponents of a will use those loopholes to defend against the surviving spouse’s exercise their spousal elective share.

Loophole 1: “there is a prenuptial agreement.” A valid prenuptial or postnuptial agreement invalidates a spouse’s right to a spousal elective share. However, this loophole itself is subject to loopholes, such as:

  • one spouse did not have her own lawyer review the agreement
  • one spouse was forced to sign it
  • one spouse did not know what she was signing
  • the prenuptial agreement is extremely unfair
  • the prenuptial agreement wasn’t signed until the couple got married
  • one spouse lied when disclosing their assets prior to the prenuptial agreement

Using those “loopholes on a loophole,” a surviving spouse may be able to set aside the prenuptial agreement and be able to claim her spousal rights.

Loophole 2: “you abandoned the spouse” – abandonment [3] is a loophole that is sometimes used to try to invalidate the New York elective share claim. It often comes up when the deceased spouse and the surviving spouse were in the process of divorce, but the deceased spouse died before the divorce could be completed. An incomplete divorce is not divorce, so the spouse is still entitled to an elective share unless the other heirs can successfully prove abandonment. Just showing that the couple did not get along is not enough, even if they no longer lived together at the time of the deceased spouse’s death.

Loophole 3: “the marriage was invalid” – if the marriage was invalid for whatever reason, there is no spousal elective share. [6] This elective share defense is commonly used to fight an elective share claim made by a much younger surviving spouse in an estate of an older deceased spouse. The argument is that the deceased spouse was too sick to give consent to enter into a marriage.

Loophole 4: “you killed your spouse.” Killing the spouse invalidates any rights to inherit from their estate. Not much of a loophole, as this is not a very common scenario. Nevertheless, it is easy to see this loophole’s potential to be applied in abuse and neglect cases.

Time Limits in Filing for a Spousal Elective Share

To qualify for a spousal right to a spousal elective share, the electing spouse has to file a Notice of Election within six months of the appointment of the executor of the estate, and within two years of the death of the decedent. This is a strict statutory deadline. There are some situations where missing the deadline is excusable, but mostly it is not. There is no reason to miss this deadline; it’s a very simple paper to file. There are documents that come later that are more complicated, but this one is intentionally made easy so that people don’t put it off. Blowing the deadline to File a Notice of Election almost always means losing the right to file an elective share.

The Business of the Decedent

The decedent’s business is an important asset of the estate. If a business of the decedent is “taken over” by the children of the decedent, the surviving spouse should make no mistake about it and ask her New York estate lawyer to conduct a forensic valuation of the business. The spouse needs to claim that the business as part of the estate for the purpose of determining the surviving spouse’s elective share.

Real-Life Spousal Elective Share Examples

Easiest case scenario – we file a Notice of Election, the executors of the estate don’t dispute and don’t try to find loopholes and just give the spouse the entire elective share (hasn’t happened yet in my practice, but hope springs eternal).

The Typical Scenario – Wife left out of a will in favor of children from the first marriage. Children try to use a loophole and claim that the spouse who died transferred property to children from their first marriage before their death. They tell the wife that there is no money in the estate to claim against. She contacts a New York estate lawyer (me), learns that any money gifted by the decedent within a year before his death is considered a part of the estate for the purposes of calculating the spousal elective share, and the court accepts that argument (because it’s the law).

Abandonment example – wife claims an inheritance, the deceased husband’s sister claims that the wife abandoned the husband and moved to a different state. Her estate lawyer defends by saying that the couple consensually moved to different states; there was no abandonment on the wife’s part.

“Zeroing out” the estate – executor, son of the decedent, claims that a multi-million dollar estate somehow owes money than it has. A contested accounting proceeding ensues, where we have a disagreement over the numbers.

New York elective share laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those claims. 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 elective share.

[1] EPTL 4-1.1

[2] EPTL 5-1.1-A

[3] EPTL 5-1.2

Spousal Inheritance Rights New York

Spousal Inheritance Rights New York

As a spouse of a person who died in New York, you have important spousal inheritance rights in their estate.

  1. If your spouse died without a will, you have the spousal inheritance right to $50,000 or 1/2 of the estate if he had children, or the right to the entire inheritance if he did not.[1]
  2. If your spouse left you out of the will, then you have the spousal inheritance right to one-third of their estate. People leave their wives out of wills in favor of children from a prior marriage. If your spouse left a will cutting you out, you have a right to an “elective share” of the first $50,000 or 1/3 of an estate if the person who died had children, or the first $50,000 or ½ of the estate if the person who died did not have children. [2]
  3. If your spouse died without updating his will after getting married to you, then you have the spousal inheritance rights to at least half of their estate. The surviving spouse would have a right to the same share of the inheritance that they would have received if the person who died did not have a will at all. In cases like this, the surviving spouse is called “the pretermitted spouse,” because the law presumes that the deceased spouse meant to include them in the will but forgot. The surviving spouse has a right to an inheritance of $50,000 or 1/2 of the estate if the person who died had children, and the right to the entire inheritance if the person who died did not have children.
  4. You also have the right to an automatic “spousal set aside” for a total of up to $56,000.

As the surviving spouse, you also have other important rights.

  • The right to be appointed as the estate’s administrator if the deceased spouse died without a will. The surviving spouse has the preference in becoming the estate administrator, the person who is in charge and in control of the estate if the spouse did not leave a will nominating such person. [3]
  • The right to file a proceeding contesting the will that leaves the surviving spouse out or diminishes their share.

“Loopholes” Claiming that there is No Money in the Estate

There are ways that people try to plan their estate in order to exclude their spouse and take money outside of the estate in an attempt to avoid the elective share. New York lawmakers are aware of those attempts and have done their best to close those loopholes. [4]

Property Transferred Within a Year of Death – Property transferred within a year of death is considered subject to the spousal rights of elective share in New York. The defenders of the will are going to claim that the decedent does not own the property and it’s not a part of the estate and not subject to the estate rules, but the claim is not likely to work, as New York law has a “claw-back” provision whereby the surviving spouse can recapture the property gifted by the decedent and taken out of the estate within a year of his death. Such property is considered to be a part of the “augmented estate” for the purposes of calculating the amount of elective share due to the surviving spouse.

Property passing outside of probate – The other heirs may claim that some of the property of the person who died is not a part of their estate. While it is technically true that “testamentary substitute” property is not a part of the probate estate, it is nevertheless a part of the “augmented estate” and is therefore countable towards calculating the elective share that the surviving spouse is entitled to. This property includes joint bank accounts, assets transferred to trusts, pension plans insurance policies where the surviving spouse is not the beneficiary.

Claiming that the estate has no money to satisfy the elective share – Establishing the right to an elective share is only the first step of the problem. The hardest part of the elective share is not the elective share New York proceeding, but the accounting proceeding. The executor will try to use accounting tricks to claim that the estate does not have the money to pay for the elective share. They will try to “zero out” the estate. Legitimate expenses are taken into an account and deducted from the total amount of the estate used to calculate the size of the elective share. But unnecessary expenses, accounting tricks, and money paid to the proponents of the estate are usually not allowed by New York Surrogate’s Court to be deducted from the amount of the estate for the purposes of calculating the elective share.

“Loopholes” Claiming that the Spouse is Disqualified

The next set of loopholes are grounds to override the right of election. The proponents of a will use those loopholes to defend against the surviving spouse’s exercise of a right of election.

Loophole 1: “there is a prenuptial agreement.” A valid prenuptial or postnuptial agreement invalidates a spousal inheritance right to make a claim in an estate. However, this loophole itself is subject to loopholes, such as:

  • one spouse did not have her own independent lawyer review the agreement
  • one spouse was forced to sign it
  • one spouse did not know what she was signing
  • the prenuptial agreement is extremely unfair
  • the prenuptial agreement wasn’t signed until the couple got married
  • one spouse lied when disclosing their assets prior to the prenuptial agreement

Using those “loopholes on a loophole,” a surviving spouse may be able to set aside the prenuptial agreement and be able to claim her spousal rights.

Loophole 2: “you abandoned the spouse” – abandonment [5] is a loophole that is sometimes used to try to invalidate the elective share claim. It often comes up when the deceased spouse and the surviving spouse were in the process of divorce but the deceased spouse died before the divorce could be completed. Needless to say, an incomplete divorce is not divorce so the spouse is still entitled to an elective share unless the other heirs can successfully prove abandonment. Just proving that the couple did not get along is not enough to take away spousal inheritance rights in New York, even if they no longer lived together at the time of the deceased spouse’s death.

Loophole 3: “the marriage was invalid” – if the marriage was invalid for whatever reason, there is no elective share or other spousal inheritance rights in New York. [6] This elective share defense is commonly used to fight an elective share claim made by a much younger surviving spouse in an estate of an older deceased spouse. The argument is that the deceased spouse was too sick to give consent to enter into a marriage.

Loophole 4: “you killed your spouse.” Killing the spouse invalidates any spousal inheritance rights in New York. Not much of a loophole, as this is not a very common scenario. Nevertheless, it is easy to see this loophole’s potential to be applied in abuse and neglect cases.

Time Limits in Filing for an Elective Share

In order to qualify for a spousal right to an elective share, the electing spouse has to file a Notice of Election within six months of the appointment of the executor of the estate, and within two years of the death of the decedent. This is a strict statutory deadline. There are some situations where missing the deadline is excusable, but mostly it is not. There is no reason to miss this deadline; it’s a very simple paper to file. There are documents that come later that are more complicated, but this one is intentionally made easy so that people don’t put it off. Blowing the deadline to File a Notice of Election almost always means losing the right to file an elective share.

The Right to the Spousal Set Aside

Up to $56,000 of estate property goes to the surviving spouse or children automatically, whether or not there’s a will, or if there’s a will that excluded the surviving spouse. [7] This spousal inheritance right is broken down as follows:

  • Up to $10,000 in household goods
  • Up to $15,000 in farm property
  • A car worth up to $15,000 (if the car is worth more, the spouse is entitled to take the car and reimburse the estate for the difference)
  • Up to $15,000 in money or other personal property
  • Up to $1,000 in mementos

The Business of the Decedent

The decedent’s business is an important asset of the estate. If a business of the decedent is “taken over” by the children of the decedent, the surviving spouse should make no mistake about it and ask her New York estate lawyer to conduct a forensic valuation of the business and claim the business as part of the estate for the purpose of determining the surviving spouse’s share.

The Right to Contest the Will

When a surviving spouse gets disinherited or their share is diminished, they often bring a will contest based on one or more of the following allegations:

  • someone unduly influenced the deceased spouse to disinherit the surviving spouse
  • the deceased spouse was too sick to sign the will
  • the will was not made correctly
  • or the will was a forgery

In contesting a Will, the surviving spouse accuses those who benefit from the will of interfering with the deceased spouse’s natural wishes to include his spouse in his estate plan.

Real-Life Examples of Spousal Inheritance Rights in New York

Easiest case scenario – we file a Notice of Election, the executors of the estate don’t dispute and don’t try to find loopholes and just give the spouse the entire elective share (hasn’t happened yet in my practice, but hope springs eternal).

The Typical Scenario – Wife left out of a will in favor of children from the first marriage. Children try to use a loophole and claim that the spouse who died transferred property to children from their first marriage before their death, tell the wife that there is no money in the estate to claim against. She contacts a New York estate lawyer (me), learns that any money gifted by the decedent within a year before his death is considered a part of the estate for the purposes of calculating the elective share, and the court accepts that argument (because it’s the law).

Abandonment example – wife claims an inheritance, the deceased husband’s sister claims that the wife abandoned the husband and moved to a different state. Sister is trying to take away the wife’s spousal inheritance rights. The wife’s estate lawyer defends by saying that the couple consensually moved to different states; there was no abandonment on the wife’s part.

“Zeroing out” the estate – executor, son of the decedent, claims that a multi-million dollar estate somehow owes money than it has. A contested accounting proceeding ensues, where we have a disagreement over the numbers.

Is New York a community property state for death? New York is a separate property state in divorce, but those concepts don’t apply to death. Instead, look at spousal rights above.

New York elective share laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those claims. 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 your New York spousal inheritance rights.

[1] EPTL 4-1.1

[2] EPTL 4-1.1

[3] EPTL 5-1.1-A

[4] EPTL 5-1.1-A

[5] EPTL 5-1.2

[6] EPTL 5-1.2

[7] EPTL 5-3.1

Right of Election for a Spouse in a New York Estate

A right of election in New York is the right of a spouse to receive one-third of an estate when they are disinherited by the deceased spouse’s will. People leave their wives out of wills all the time, usually in favor of children from a prior marriage. In New York, a surviving spouse has the right to inheritance even if they were cut out of the will. If the deceased spouse left a will excluding their spouse, a “right of election” of 1/3 of an estate if the person who died had children with the wife, or ½ of the estate if the person who died did not have children with the wife. [1]

If 1/3 or ½ estate, respectively, is less than $50,000, then the surviving spouse would be entitled to $50,000 instead.[2]

In addition to the right of election, the widow also has the right to a “spousal set aside” for a total of up to $56,000. Simultaneously with filing for a right of election, the surviving spouse usually files the proceeding to contest the will that leaves the surviving spouse out or diminishes their share.

Time Limits in Filing for a Right of Election

In order to qualify for a spousal right to a right of election, the electing spouse has to file a Notice of Election within six months of the appointment of the executor of the estate, and within two years of the death of the decedent. Six months is a statute of limitations. It’s a strict statutory deadline. There are some situations where missing the deadline is excusable, but mostly it is not. There is no reason to miss this deadline; it’s a very simple paper to file. There are documents that come later that are more complicated, but this one is intentionally made easy so that people don’t put it off. Missing the deadline to file a Notice of Election almost always means losing the right to file a right of election.

“Loopholes” Claiming that there is No Money in the Estate for the Right of Election

There are ways that people try to plan their estate in order to exclude their spouse and take money outside of the estate in an attempt to minimize a spouse’s right of election. New York lawmakers are aware of those attempts, and have done their best to close those loopholes. [3]

Property Transferred Within a Year of Death – Property transferred within a year of death is considered subject to the spousal rights of right of election. The defenders of the will are going to claim that the decedent does not own the property and it’s not a part of the estate and not subject to the estate rules, but the claim is not likely to work, as New York law has a “claw-back” provision whereby the surviving spouse can recapture the property gifted by the decedent and taken out of the estate within a year of his death. Such property is considered to be a part of the “augmented estate” for the purposes of calculating the amount of right of election due to the surviving spouse.

Property passing outside of probate – The other heirs may claim that some of the property of the person who died is not a part of their estate. While it is technically true that “testamentary substitute” property is not a part of the probate estate, it is nevertheless a part of the “augmented estate” and is therefore countable towards calculating the right of election that the surviving spouse is entitled to. This property includes joint bank accounts, assets transferred to trusts, pension plans insurance policies where the surviving spouse is not the beneficiary.

Claiming that the estate has no money to satisfy the right of election – Establishing the right to a right of election is only the first step of the problem. The hardest part of the right of election is not the right of election proceeding, but the accounting proceeding. The executor will try to use accounting tricks to claim that the estate does not have the money to pay for the right of election. They will try to “zero out” the estate. Legitimate expenses are taken into an account and deducted from the total amount of the estate used to calculate the size of the right of election. But unnecessary expenses, accounting tricks and money paid to the proponents of the estate are usually not allowed by New York Surrogate’s Court to be deducted from the amount of the estate for the purposes of calculating the right of election.

“Loopholes” Claiming that the Spouse is Disqualified from the Right of Election

The next set of loopholes are grounds to override the right of election. Those factors are essentially loopholes that the proponents of a will use to defend against the surviving spouse’s exercise of a right of election.

Loophole 1: “there is a prenuptial agreement.” A valid prenuptial or postnuptial agreement invalidates a spouse’s rights to make a claim in an estate. However, this loophole itself is subject to loopholes, such as:

  • one spouse did not have her own independent lawyer review the agreement
  • one spouse was forced to sign it
  • one spouse did not know what she was signing
  • the prenuptial agreement is extremely unfair
  • the prenuptial agreement wasn’t signed until the couple got married
  • one spouse lied when disclosing their assets prior to the prenuptial agreement

Using those “loopholes on a loophole,” a surviving spouse may be able to set aside the prenuptial agreement and be able to claim her spousal rights.

Loophole 2: “you abandoned the spouse” – abandonment [4] is a loophole that is sometimes used to try to invalidate the right of election claim. It often comes up when the deceased spouse and the surviving spouse were in the process of divorce but the deceased spouse died before the divorce could be completed. Needless to say, an incomplete divorce is not divorce so the spouse is still entitled to a right of election unless the other heirs can successfully prove abandonment. Just proving that the couple did not get along is not enough, even if they no longer lived together at the time of the deceased spouse’s death.

Loophole 3: “the marriage was invalid” – if the marriage was invalid for whatever reason, there is no right of election. [5] This right of election defense is commonly used to fight a right of election claim made by a much younger surviving spouse in an estate of an older deceased spouse. The argument is that the deceased spouse was too sick to give consent to enter into a marriage.

Loophole 4: “you killed your spouse.” Killing the spouse invalidates any rights to inherit from their estate. Not much of a loophole, as this is not a very common scenario. Nevertheless, it is easy to see this loophole’s potential to be applied in abuse and neglect cases.

The Right to the Spousal Set Aside

Up to $56,000 of estate property goes to the surviving spouse or children automatically, whether or not there’s a will, or if there’s a will that excluded the surviving spouse. [6] This is broken down as follows:

  • Up to $10,000 in household goods
  • Up to $15,000 in farm property
  • A car worth up to $15,000 (if the car is worth more, the spouse is entitled to take the car and reimburse the estate for the difference)
  • Up to $15,000 in money or other personal property
  • Up to $1,000 in mementos

The Business of the Decedent

The decedent’s business is an important asset of the estate. If a business of the decedent is “taken over” by the children of the decedent, the surviving spouse should make no mistake about it and ask her New York estate lawyer to conduct a forensic valuation of the business and claim the business as part of the estate for the purpose of determining the surviving spouse’s share.

The Right to Challenge the Will

When a surviving spouse gets disinherited or their share is diminished, they often bring a will challenge based on one or more of the following allegations:

  • someone unduly influenced the deceased spouse to disinherit the surviving spouse
  • the deceased spouse was too sick to sign the will
  • the will was not made correctly
  • or the will was a forgery

In contesting a Will, the surviving spouse accuses those who benefit from the will of interfering with the deceased spouse’s natural wishes to include his spouse in his estate plan.

Real-Life Examples

Easiest case scenario – we file a Notice of Election, the executors of the estate don’t dispute and don’t try to find loopholes and just give the spouse the entire right of election (hasn’t happened yet in my practice, but hope springs eternal).

The Typical Scenario – Wife left out of a will in favor of children from the first marriage. Children try to use a loophole and claim that the spouse who died transferred property to children from their first marriage before their death, tells the wife that there is no money in the estate to claim against. She contacts a New York estate lawyer (me), learns that any money gifted by the decedent within a year before his death is considered a part of the estate for the purposes of calculating the right of election, and the court accepts that argument (because it’s the law).

Abandonment example – wife claims an inheritance, the deceased husband’s sister claims that the wife abandoned the husband and moved to a different state. Her estate lawyer defends by saying that the couple consensually moved to different states; there was no abandonment on the wife’s part.

“Zeroing out” the estate – executor, son of the decedent, claims that a multi-million dollar estate somehow owes money than it has. A contested accounting proceeding ensues, where we have a disagreement over the numbers.

New York right of election laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those claims. 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.

[1] EPTL 4-1.1

[2] EPTL 4-1.1

[3] EPTL 5-1.1-A

[4] EPTL 5-1.2

[5] EPTL 5-1.2

[6] EPTL 5-3.1

The Rights of the Surviving Spouse in New York

Rights of the Surviving Spouse

As a spouse of a person who died in New York, you have fundamental property rights in their estate.

  1. If your spouse died without a will, you have the right to $50,000 or 1/2 of the estate if he had children, or the right to the entire inheritance if he did not.[1]
  2. If your spouse left you out of the will, then you have the right to one-third of their estate. People leave their wives out of wills in favor of children from a prior marriage. If your spouse left a will cutting you out, you have a right to an “elective share” of the first $50,000 or 1/3 of an estate if the person who died had children, or the first $50,000 or ½ of the estate if the person who died did not have children. [2]
  3. If your spouse died without updating his will after getting married to you, then you have the right to at least half of their estate. The surviving spouse would have a right to the same share of the inheritance that they would have received if the person who died did not have a will at all. In cases like this, the surviving spouse is called “the pretermitted spouse,” because the law presumes that the deceased spouse meant to include them in the will but forgot. The surviving spouse has a right to an inheritance of $50,000 or 1/2 of the estate if the person who died had children, and the right to the entire inheritance if the person who died did not have children.
  4. You also have the right to an automatic “spousal set aside” for a total of up to $56,000.

As the surviving spouse, you also have other important rights.

  • The right to be appointed as the estate’s administrator if the deceased spouse died without a will. The surviving spouse has the preference in becoming the estate administrator, the person who is in charge and in control of the estate if the spouse did not leave a will nominating such person. [3]
  • The right to file a proceeding contesting the will that leaves the surviving spouse out or diminishes their share.

“Loopholes” Claiming that there is No Money in the Estate

There are ways that people try to plan their estate in order to exclude their spouse and take money outside of the estate in an attempt to avoid the elective share. New York lawmakers are aware of those attempts and have done their best to close those loopholes. [4]

Property Transferred Within a Year of Death – Property transferred within a year of death is considered subject to the spousal rights of elective share in New York. The defenders of the will are going to claim that the decedent does not own the property and it’s not a part of the estate and not subject to the estate rules, but the claim is not likely to work, as New York law has a “claw-back” provision whereby the surviving spouse can recapture the property gifted by the decedent and taken out of the estate within a year of his death. Such property is considered to be a part of the “augmented estate” for the purposes of calculating the amount of elective share due to the surviving spouse.

Property passing outside of probate – The other heirs may claim that some of the property of the person who died is not a part of their estate. While it is technically true that “testamentary substitute” property is not a part of the probate estate, it is nevertheless a part of the “augmented estate” and is therefore countable towards calculating the elective share that the surviving spouse is entitled to. This property includes joint bank accounts, assets transferred to trusts, pension plans insurance policies where the surviving spouse is not the beneficiary.

Claiming that the estate has no money to satisfy the elective share – Establishing the right to an elective share is only the first step of the problem. The hardest part of the elective share is not the elective share New York proceeding, but the accounting proceeding. The executor will try to use accounting tricks to claim that the estate does not have the money to pay for the elective share. They will try to “zero out” the estate. Legitimate expenses are taken into an account and deducted from the total amount of the estate used to calculate the size of the elective share. But unnecessary expenses, accounting tricks, and money paid to the proponents of the estate are usually not allowed by New York Surrogate’s Court to be deducted from the amount of the estate for the purposes of calculating the elective share.

“Loopholes” Claiming that the Spouse is Disqualified

The next set of loopholes are grounds to override the right of election. The proponents of a will use those loopholes to defend against the surviving spouse’s exercise of a right of election.

Loophole 1: “there is a prenuptial agreement.” A valid prenuptial or postnuptial agreement invalidates a spouse’s right to make a claim in an estate. However, this loophole itself is subject to loopholes, such as:

  • one spouse did not have her own independent lawyer review the agreement
  • one spouse was forced to sign it
  • one spouse did not know what she was signing
  • the prenuptial agreement is extremely unfair
  • the prenuptial agreement wasn’t signed until the couple got married
  • one spouse lied when disclosing their assets prior to the prenuptial agreement

Using those “loopholes on a loophole,” a surviving spouse may be able to set aside the prenuptial agreement and be able to claim her spousal rights.

Loophole 2: “you abandoned the spouse” – abandonment [5] is a loophole that is sometimes used to try to invalidate the elective share claim. It often comes up when the deceased spouse and the surviving spouse were in the process of divorce but the deceased spouse died before the divorce could be completed. Needless to say, an incomplete divorce is not divorce so the spouse is still entitled to an elective share unless the other heirs can successfully prove abandonment. Just proving that the couple did not get along is not enough, even if they no longer lived together at the time of the deceased spouse’s death.

Loophole 3: “the marriage was invalid” – if the marriage was invalid for whatever reason, there is no elective share. [6] This elective share defense is commonly used to fight an elective share claim made by a much younger surviving spouse in an estate of an older deceased spouse. The argument is that the deceased spouse was too sick to give consent to enter into a marriage.

Loophole 4: “you killed your spouse.” Killing the spouse invalidates any rights to inherit from their estate. Not much of a loophole, as this is not a very common scenario. Nevertheless, it is easy to see this loophole’s potential to be applied in abuse and neglect cases.

Time Limits in Filing for an Elective Share

In order to qualify for a spousal right to an elective share, the electing spouse has to file a Notice of Election within six months of the appointment of the executor of the estate, and within two years of the death of the decedent. This is a strict statutory deadline. There are some situations where missing the deadline is excusable, but mostly it is not. There is no reason to miss this deadline; it’s a very simple paper to file. There are documents that come later that are more complicated, but this one is intentionally made easy so that people don’t put it off. Blowing the deadline to File a Notice of Election almost always means losing the right to file an elective share.

The Right to the Spousal Set Aside

Up to $56,000 of estate property goes to the surviving spouse or children automatically, whether or not there’s a will, or if there’s a will that excluded the surviving spouse. [7] This is broken down as follows:

  • Up to $10,000 in household goods
  • Up to $15,000 in farm property
  • A car worth up to $15,000 (if the car is worth more, the spouse is entitled to take the car and reimburse the estate for the difference)
  • Up to $15,000 in money or other personal property
  • Up to $1,000 in mementos

The Business of the Decedent

The decedent’s business is an important asset of the estate. If a business of the decedent is “taken over” by the children of the decedent, the surviving spouse should make no mistake about it and ask her New York estate lawyer to conduct a forensic valuation of the business and claim the business as part of the estate for the purpose of determining the surviving spouse’s share.

The Right to Contest the Will

When a surviving spouse gets disinherited or their share is diminished, they often bring a will contest based on one or more of the following allegations:

  • someone unduly influenced the deceased spouse to disinherit the surviving spouse
  • the deceased spouse was too sick to sign the will
  • the will was not made correctly
  • or the will was a forgery

In contesting a Will, the surviving spouse accuses those who benefit from the will of interfering with the deceased spouse’s natural wishes to include his spouse in his estate plan.

Real-Life Examples

Easiest case scenario – we file a Notice of Election, the executors of the estate don’t dispute and don’t try to find loopholes and just give the spouse the entire elective share (hasn’t happened yet in my practice, but hope springs eternal).

The Typical Scenario – Wife left out of a will in favor of children from the first marriage. Children try to use a loophole and claim that the spouse who died transferred property to children from their first marriage before their death, tell the wife that there is no money to in the estate to claim against. She contacts a New York estate lawyer (me), learns that any money gifted by the decedent within a year before his death is considered a part of the estate for the purposes of calculating the elective share, and the court accepts that argument (because it’s the law).

Abandonment example – wife claims an inheritance, the deceased husband’s sister claims that the wife abandoned the husband and moved to a different state. Her estate lawyer defends by saying that the couple consensually moved to different states; there was no abandonment on the wife’s part.

“Zeroing out” the estate – executor, son of the decedent, claims that a multi-million dollar estate somehow owes money than it has. A contested accounting proceeding ensues, where we have a disagreement over the numbers.

Is New York a community property state for death? New York is a separate property state in divorce, but those concepts don’t apply to death. Instead, look at spousal rights above.

New York elective share laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those claims. 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.

[1] EPTL 4-1.1

[2] EPTL 4-1.1

[3] EPTL 5-1.1-A

[4] EPTL 5-1.1-A

[5] EPTL 5-1.2

[6] EPTL 5-1.2

[7] EPTL 5-3.1

Your Rights in Your Late Husband’s Estate

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.

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.

What Happens to an Estate of a Person Who Died During a Divorce in New York?

When a person dies during a divorce in New York, many questions arise in regard to their estate. Does the estate go to the wife or husband whom they were in the process of divorcing? Is the surviving spouse treated as if the divorce has already happened? Does the divorce process just continue?

In a New York estate, being in the process of a divorce in and of itself does not disqualify the surviving spouse of the person who died from inheriting the estate. However, there are two ways in which divorcing spouses are cut off from inheritance. The first way is retroactive divorce judgment. The second one is abandonment.

Retroactive Divorce Judgment

In many divorces where one of the spouses dies before the divorce is completed, the court will issue a nunc pro tunc retroactive Judgment. This is especially true if a divorce was underway and about to be concluded. The parties’ settlement agreement or even a draft settlement agreement can be a factor in deciding the terms of the divorce judgment.

If a retroactive divorce judgment is granted by the divorce court, the probate court considers the parties to be divorced, cutting off the surviving one from inheriting from the one they were in a divorce proceeding with.

Abandonment

If a retroactive divorce judgment is not granted, the survivor can be cut off from the divorcing spouse’s inheritance by a claim of abandonment. Being in a process of a divorce can be an important factor in proving an abandonment claim, which if successful would preclude a surviving spouse from inheriting.

In the Surrogate’s Court, the surviving spouse is assumed to be entitled to what they would have gotten even if they are in the process of being divorced, unless someone files a claim that the surviving spouse abandoned the deceased spouse.

New York law about abandonment is very fact-specific, and has to be addressed on a case-to-case basis. Just filing for divorce in and of itself is not abandonment – it can be interpreted as an attempt to dissolve a marriage in an orderly fashion.

Certainly living apart while the divorce was filed or even after the divorce was filed helps to prove an abandonment claim. But it’s also not the final say. If the decedent was the one who left the surviving spouse, then an abandonment claim would not go through and the surviving spouse would receive the part of the estate they’re entitled to.

Even leaving a spouse is not always abandonment. For example, if they were the one who threw the surviving spouse out. Leaving with mutual consent is also arguably not abandonment. The best case of abandonment would be when the decedent did not want the surviving spouse to leave but the surviving spouse left anyway. This kind of case can be difficult to prove because one of the participants is no longer there to testify, and testifying about their testimony is precluded by the hearsay rules and the dead-man statute.

If you would like to learn more about this topic, read our related articles:

The article on Abandonment.

Does a New York estate have to pay child support?

Is there a time limit for filing for an Elective Share?

How is the estate divided when someone died without a will?

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 if you find yourself on either side in an estate where a person died in New York during a divorce.

Is There a Deadline or Time Limit for Filing for Elective Share in New York?

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 when there are children or 1/2 without, whichever is higher. However, 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.

Abandonment of a Spouse – When is an Estranged Spouse Entitled to Collect Part of the Estate?

The law in New York is set up so that one spouse can be sure to be entitled to the other spouse’s part of the estate, even in cases where the decedent does not leave a will. What about those situations where the spouses are estranged and not living together for some reason? Are there instances in such situations where the other beneficiaries of the decedent’s estate can try to block an estranged spouse from collecting his or her elective share? The answer is yes, but only in some cases. It must be kept in mind that such cases between a surviving spouse can be complex and especially adversarial, meaning that an experienced New York City estate attorney is vital to success.

When spouses are separated for some reason at the time that one dies., the other beneficiaries of the estate may try to argue that the surviving spouse is not entitled to collect their share of the estate because he or she had abandoned the marriage. This allows the courts to intervene in the cases of spouses who are estranged at the time of the decedent’s death.

While there are legal measures in place allowing for the surviving spouse to be blocked from collecting their share of the estate, doing so involves complex legal work that is really only suitable for a New York City estate attorney. Simply proving that the spouses did not live together at the time one spouse died will not be enough to have the surviving spouse cut out of the proceeds of the estate. Court usually looks for egregious or obvious evidence that one spouse abandoned the other. Examples of actions that could be considered abandonment could be living apart without the decedent’s permission, refusing to have contact with the decedent while he or she was dying or filing for divorce while living apart.

There are some instances where a spouse would not have been considered to have abandoned the decedent, such as when leaving the decedent was somehow justified or could otherwise be explained. Examples of this could include if the decedent was abusive when the surviving spouse left or when the surviving spouse was only separated from the decedent because he or she was unable to care for the decedent for some reason.

In addition to the procedure being difficult when it comes to disputes involving spousal rights to the estate, an experienced New York City estate lawyer needs to be hired because these cases can often end up getting appealed, due to the complex legal and factual issues involved, so it’s important to not make any errors which would make an appeal possible.

If you would like to consult a New York City estate attorney, call the Law Offices of Albert Goodwin at (212) 233-1233.

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.

Does A Surviving Spouse Of A New York Estate Automatically Inherit All Assets?

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.

Disqualification

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:

•    Incest
•    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.