Does Wife Have Rights to Husband’s Property After Death?

One of the main questions a wife asks when her husband dies is whether she has rights to her husband’s property after death.

As a general rule, as long as you are still legally married to each other upon the death of your husband (and even if divorce proceedings are pending but no court order has been issued yet), you are entitled to at least some of your husband’s property after death. Even if he made a will leaving nothing to you. An exception is, if the wife signed a document (which is usually a prenuptial agreement) waiving the right to the spousal elective share.

Most states, such as New York, have a spousal elective share, entitling the wife to a portion of the husband’s property, even if the husband’s will has completely omitted the wife from receiving anything. In New York, this spousal elective share is equivalent to $50,000 or 1/3 of the net estate of the husband, whichever is higher.

This spousal elective share does not only apply when you have been completely omitted from the will. It also applies when the wife receives less than the spousal elective share in the will. So for example, in New York, if the husband’s net estate was $300,000 and you, the wife, received only $20,000 in the will, you can file to receive your spousal elective share, which should be $100,000 or 1/3 of $300,000.

With or without a will

As a wife, your rights to your husband’s property will depend on whether your husband left a will or not. If your husband did not leave a will, you are entitled to your intestate share. A wife’s intestate share depends on the laws of the state where the husband was a resident when the husband died.

For example, in New York, a wife’s intestate share is the entire property if there are no children, and $50,000 plus one-half of the remainder if there are children. In Florida, if the only children the husband left are the common children between the husband and wife, the wife’s intestate share is all of the husband’s property upon the husband’s death.

If your husband died with a will, there are two scenarios: (a) your husband completely omitted you from the will; or (b) your husband left you something which is less than the spousal elective share. In both cases, for as long as you did not sign any waiver of your spousal elective share (which waiver you will usually see in a prenuptial agreement), then you can file for your spousal elective share.

Filing for your spousal elective share

In New York, a wife has to file the claim for spousal elective share with the Surrogate’s Court within 6 months from the date of issuance of letters testamentary or administration, but no in no case later than 2 years after your husband’s death.

By filing a claim with the Surrogate’s Court, you are requesting the court to give you your due, counted from the estate of your husband which should include the testamentary substitutes. It is the court who will decide from which account to derive your spousal elective share from. If you need assistance in filing your spousal elective share, you can call us at 212-233-1233 or send us an email at [email protected].

Computing the spousal elective share

One main issue arising from the computation of the spousal elective share is computing your husband’s estate. The probate estate and the estate for purposes of computing the spousal elective share are different.

Sometimes, your husband would transfer property, to his children, relatives, or other friends using a trust, a Totten trust account (which is a bank account in trust for another person), a TOD (transfer on death) account, or a designated beneficiary for a retirement account. He could also transfer property to another, while reserving for himself a life estate. At times, your husband may transfer property a few months before he dies.

When your husband dies, you realize that he has no probate estate because most of his property has already been transferred. This action results to having effectively disinherited you, the wife. Is this possible?

In New York, a husband, absent a waiver from the wife, cannot disinherit the wife by transferring properties to other people before he dies. Testamentary substitutes are properties that are included in a husband’s estate for purposes of computing the spousal elective share.

The following properties are testamentary substitutes:

  • Gifts made in contemplation of death
  • Gifts made within one year from decedent’s death or transfers made to the extent that decedent did not receive adequate and full consideration for his property
  • Totten trust accounts
  • Joint bank accounts with rights of survivorship (to the extent of decedent’s share)
  • Property held under joint tenancy with rights of survivorship or payable to another on death (to the extent of decedent’s share)
  • Property transferred to another (including trust property) where decedent retained for himself a life estate (except those that were transferred with adequate consideration)
  • Retirement accounts
  • Property in which decedent held a general power of appointment
  • Transfer of securities with transfer on death registration

Hypothetical example of property for spousal elective share

For example, prior to your husband’s death, your husband had $50,000 in a bank account in his own name, $100,000 in a bank account he held with his mom with rights of survivorship, a boat worth $100,000, a retirement account worth $300,000 with his daughter A from a previous marriage as a beneficiary, a single-family home worth $500,000, and a bank account worth $35,000 in trust for his son B from a previous marriage.

Three years before your husband’s death, he sold his house worth $500,000 to his daughter A for $250,000, retaining for himself a life estate where he could use the house for the rest of his life. Six months before your husband died, he sold his boat worth $100,000 to his son B for $40,000. When he died, he left a will, giving $10,000 to his mother and the remainder of his estate to you, his spouse. You learned that upon your husband’s death, the only property left in his name is the $50,000 bank account.

If you decide to file your claim for your spousal elective share, how much is your husband’s estate for purposes of computing the spousal elective share?

In this case, your husband’s estate is $745,000, comprising the following: (a) $50,000 bank account in his own name; (b) $50,000 representing ½ share of the bank account held with his mom with rights of survivorship; (c) $60,000, representing the portion of the boat to which your husband did not receive adequate consideration; (d) $300,000 retirement account; (e) $250,000, representing the portion of the house that was not paid for with adequate consideration; and (f) $35,000 from the Totten trust.

The boat was a transfer to his son B for inadequate consideration within one year from your husband’s death. Since the value of the boat was $100,000 and the son B only paid $40,000 for it, the $60,000 is considered a gift within one year from his death and is considered part of the estate of the husband for purposes of computing the spousal elective share.

The house was transferred more than one year prior to the husband’s death. However, since the husband retained a life estate over the house, it is considered a testamentary substitute and part of his estate for purposes of computing the spousal share. Only the portion of the house that was not paid with adequate consideration, the amount of $250,000, is added back to the husband’s estate for purposes of computing the spousal share.

The joint account with the mom is presumed 50% owned by the husband for purposes of computing the spousal elective share. The Totten trust account and retirement account with a beneficiary is also considered a testamentary substitute that is included in the estate of the husband for purposes of computing the spousal elective share.

Given all of these, the husband’s estate is $745,000, and the wife’s spousal elective share is $248,333.33.

Remember that the spousal elective share is not computed based on the probate estate but based on the estate which includes testamentary substitutes. An estate litigation attorney will be able to help you compute the proper amount a wife should receive of the husband’s property after the husband’s death.

What is the wife entitled to inherit when the husband dies pending divorce proceedings

When a divorce has been filed, has not yet been resolved, and the husband dies pending divorce proceedings, you are probably wondering what you are entitled to inherit? In this case, the court will have to dismiss the divorce petition. The court cannot promulgate a divorce decision when one of the parties is dead because a divorce action is personal.

Legally, you will still be considered as the spouse with right to the spousal elective share. The children, however, may contest the validity of your marriage.

Will New York recognize a common-law marriage created in another state?

If you are a common-law wife and the common-law marriage was created in another state that recognized common law marriages, New York may recognize your marital status as wife. You will need to prove with the Surrogate’s Court, however, your legal status as wife, and that all legal requirements of the state for a common-law marriage were met in your case. Once you have proven your legal status as wife, you are entitled to inherit as a spouse, which includes the spousal elective share.

Other benefits

As a spouse, you are entitled to be appointed as administrator of your husband’s estate if he died without a will. As a legal heir, you can also contest the will.

You are also entitled to collect 100% of your husband’s social security benefit if you have reached full retirement age. However, the amount you can collect will decrease if your deceased husband claimed benefits before reaching full retirement age.

What a wife is entitled to inherit upon the death of a husband may be simple or complex depending on the properties that were left, whether you were omitted from the will, and whether your husband died without a will. Ultimately, it is recommended that you seek advice from a lawyer if you feel you are being shortchanged with what you are getting as your inheritance. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].

Attorney Albert Goodwin

Law Offices of
Albert Goodwin, PLLC
31 W 34 Str, Suite 7058
New York, NY 10001
[email protected]