Entire Family Written Out of a Will in New York

Can you write out or disinherit your entire family in a New York will? Although you can write out your children from your New York will, a spouse that has been written out and disinherited can elect to receive their spousal share which is the greater of $50,000 or one-third of the estate, which includes testamentary substitutes.

Therefore, while you can disinherit your children in a New York will, you cannot completely disinherit your spouse, who has the right to claim an elective share of the estate.

Disinheriting children

It is possible to write out children from a New York will, as there is no legal requirement to leave anything to children. New York law does not mandate inheritances for children, and the testator has the freedom to distribute their estate as they choose.

Disinheritance can be done by explicitly stating it in the will, using clear language such as "I intentionally make no provision for any of my children." This helps show the intent to exclude children from inheritance and can prevent will contests by disappointed heirs.

Disinheritance can also be accomplished by omitting any mention of the children in the will. If children are not named, they receive nothing by default, as silence in the will is treated as an intentional exclusion. However, this approach may lead to will contests by the excluded children.

The ability to disinherit applies to both adult and minor children, as parents have no obligation to leave an inheritance to children of any age. Adult children are not entitled to inherit from their parents' estates, and minor children can be disinherited. Adopted and biological children are treated the same for inheritance purposes.

Disinheriting a spouse

In New York, a disinherited or omitted spouse can elect to receive their spousal share (the "elective share"), which is the greater of $50,000 or one-third of the estate. The net estate, for purposes of computing the elective share, includes testamentary substitutes.

Testamentary substitutes are assets that pass outside the will but are still considered part of the estate. These include:

• Jointly owned property with right of survivorship
• Joint bank accounts
• Totten Trusts (“In Trust For” bank accounts)
• Gifts made in contemplation of death (gifts causa mortis)
• Outright gifts made in the last year of the decedent’s life, excluding annual exclusion gifts and gifts for direct tuition and medical payments.
• Property in which decedent retained a life estate
• Retirement accounts (e.g., 401(k)s, IRAs) with designated beneficiaries
• Property in which decedent held a gheneral power of appointment
• Certain trust assets
• Transfers of securities on transfer-on-death registration
• Certain lifetime trusts and contracts (including annuities but excluding life insurance policies)

Testamentary substitutes are not controlled by the will but are included in the estate for calculating the spousal share. The value of testamentary substitutes is added to the net estate value when calculating the elective share. For instance, if the net estate value is $600,000 and testamentary substitutes are worth $300,000, the total value for calculating the elective share would be $900,000, and the spousal share would be $300,000.

The elective share is calculated based on the net value of the estate, which is determined after debts, expenses, and estate taxes are paid. For example, if the estate is worth $900,000 and has $300,000 in debts and expenses, the net value is $600,000, and the spousal share would be $200,000. The remaining two-thirds of the net estate can be distributed to other beneficiaries named in the will. In the example above, the remaining $400,000 would be distributed according to the will's terms.

To receive the elective share, the spouse must actively elect against the will by making a written notice of election served upon the executor and filed with the Surrogate's Court within 6 months after the issuance of letters testamentary and within two years of the decedent's death. This deadline is strict, and late filings are generally not permitted unless there are exceptional circumstances. Failure to file the notice of election within the required time frame may result in the spouse losing their right to claim the elective share.

The elective share is in lieu of any bequests made to the spouse in the will. The spouse cannot take both the elective share and the gifts left to them in the will; they must choose between accepting the terms of the will or asserting their right to the elective share. If the spouse elects to take their share, they forfeit any specific bequests, such as personal property or cash gifts, made to them in the will.

Writing out your entire family in a New York will is possible. However, it is important to remember that a spouse, written out of a will, can still elect to receive the spousal share. Consulting with an experienced estate planning lawyer like us is crucial when writing a will where children or a spouse is disinherited or omitted. We can advise on alternative strategies to reduce the spouse's share other than a complete omission in the will. Should you need assistance, the Law Offices of Albert Goodwin are here for you. We are located in Midtown Manhattan, New York, NY. Call us at 212-233-1233 or email [email protected] to schedule a consultation.