If My Son Dies, Will My Daughter-in-Law Inherit My Estate in New York?

By Albert Goodwin, Esq., attorney admitted in New York, Law Offices of Albert Goodwin, New York, NY. This page discusses New York law only.

Under New York law, your daughter-in-law is not a distributee of your estate. EPTL 4-1.1 lists the relatives who inherit when there is no will: a spouse, children and their descendants, parents, siblings and their descendants, and more distant blood relatives. A child's spouse is not on the list. She can receive your property only indirectly, through what your son receives from you and later leaves behind. So the answer depends on two things: who dies first, and whether your son receives his inheritance outright or in trust.

The short answer

• If your son dies before you: your daughter-in-law takes nothing from your estate. Your son's share passes to his children under EPTL 4-1.1 and EPTL 1-2.16 (no will) or EPTL 3-3.3 (will).
• If you die before your son and leave him property outright: it becomes his property. When he dies, his wife inherits from him as his spouse under EPTL 4-1.1 or claims an elective share under EPTL 5-1.1-A.
• If you leave your son's share in trust: the trust, not your son, owns the property. Your daughter-in-law's spousal rights do not reach it, and the remainder passes to the people you name, usually your grandchildren.
• If your grandchildren are minors: your daughter-in-law may control their inheritance as guardian or custodian even though she does not own it. A trust with a trustee you choose is the way to address this.

Scenario 1: You die before your son, without a will

Without a will, your estate passes under EPTL 4-1.1. If you leave a spouse and children, your spouse takes the first $50,000 plus one-half of the balance, and your children share the rest by representation (EPTL 4-1.1(a)(1)). If you leave children but no spouse, your children take everything (EPTL 4-1.1(a)(3)). Your son's share is his property outright the moment the administrator distributes it. Our page on letters of administration explains how that process works in Surrogate's Court.

Once the property is his, New York law treats it like any other asset he owns. If he later dies without a will, EPTL 4-1.1 applies again, this time to his estate. His wife takes everything if he has no children (EPTL 4-1.1(a)(2)). If he has children, she takes $50,000 plus one-half of the balance, and the children share the rest (EPTL 4-1.1(a)(1)). As his parent, you inherit from him only if he leaves no spouse and no descendants (EPTL 4-1.1(a)(4)).

The result can be faster than that. If your son deposits his inheritance into a joint account with his wife, Banking Law 675 presumes the account passes to her at his death, outside his estate entirely. See our page on joint bank accounts at death.

Scenario 2: You die before your son, with a will

A will that leaves property to your son outright produces the same result as intestacy once he receives it. He owns it. He can leave it by his own will to his children or anyone else, but he cannot cut his wife out completely. Under EPTL 5-1.1-A, a surviving spouse may elect to take the greater of $50,000 or one-third of the net estate. The net estate includes testamentary substitutes listed in EPTL 5-1.1-A(b): joint accounts, Totten trust accounts, revocable lifetime trusts, retirement accounts, and gifts made within one year of death, among others. Moving assets out of the probate estate does not defeat the election.

Two things do limit the election. A spouse can waive it in a writing that is signed and acknowledged, which is what a prenuptial or postnuptial agreement does (EPTL 5-1.1-A(e)). And a spouse who is disqualified under EPTL 5-1.2, for example by a final divorce, a separation judgment against her, or abandonment, loses the right. Our page on the spousal right of election covers the procedure and deadlines.

If you want to keep your daughter-in-law's elective share away from what you leave your son, the fix is in your will, not his. A testamentary trust for your son's benefit holds the property for his lifetime and passes the remainder to his children. Property held in a trust you created is not part of his net estate for elective share purposes because he never owned it.

Scenario 3: Your son dies before you

If your son dies first, he never receives anything from you, and neither does his wife. Under EPTL 2-1.6, a person must survive you by 120 hours to inherit from you at all.

Without a will

Your son's share passes to his children "by representation" under EPTL 4-1.1. In New York, by representation means per capita at each generation, defined in EPTL 1-2.16. The estate is divided into equal shares at the nearest generation that has a living member, counting both the living members and the deceased members who left descendants. Each living child takes one share. The shares of the deceased children are then pooled and split equally among their children.

An example shows the difference from strict per stirpes. Suppose you have three children. Two survive you. Your son died first, leaving two children. Your estate is divided into three shares; each surviving child takes one, and your two grandchildren split the third. Now suppose two of your three children died first, one leaving one child and the other leaving three. The surviving child takes one-third, and the four grandchildren share the remaining two-thirds equally, one-sixth each. Under strict per stirpes, the lone grandchild would take a full third and the other three would split a third. New York pools the shares. Your daughter-in-law is not in either calculation.

With a will

If your will leaves property to your son and he dies before you, New York's anti-lapse statute controls. EPTL 3-3.3 provides that a gift to the testator's issue or to a brother or sister who dies before the testator does not lapse; it vests in that beneficiary's surviving issue, by representation. Your son's children take his gift. His wife does not. The statute names issue only, never a spouse.

The statute is a default. Your will can say "to my son, if he survives me, and if he does not, to his issue who survive me, by representation" or direct the gift elsewhere. If your son dies before you leaving no children, EPTL 3-3.3 does not apply; the gift lapses and falls into your residuary estate or passes by intestacy. A will drafted with these contingencies in mind avoids disputes later.

The practical problem: minor grandchildren and who controls the money

For most parents asking this question, the worry is not whether the daughter-in-law owns the inheritance. The worry is that she will control it. If your son dies first and your grandchildren are under 18, their mother is their natural guardian of the person. She is not automatically guardian of their property.

An executor or administrator cannot hand a minor's inheritance to the surviving parent. The fiduciary has three options:

• Guardian of the property (SCPA Article 17): the Surrogate's Court appoints a guardian, often the surviving parent. Under SCPA 1708 the funds must be deposited in a bank account subject to withdrawal only by court order, and the guardian must file annual accountings. The guardianship ends at 18, when the child receives the full amount outright.
• Deposit with the court (SCPA 2220): the funds are held jointly with the Surrogate's Court until the child turns 18.
• Custodian under New York's Uniform Transfers to Minors Act (EPTL 7-6.1 through 7-6.26): EPTL 7-6.6 lets a fiduciary transfer a minor's share to a custodian in limited circumstances, and your will can direct a UTMA transfer. The custodian has broad authority to spend for the child without court supervision. The custodianship ends at 21 under EPTL 7-6.20.

Each of these puts the money either under court control, which is slow and inflexible, or under the surviving parent's control, which is what many grandparents want to avoid. Neither lets you choose the age at which the grandchild takes outright.

A trust solves both problems. You name the trustee. You can name a sibling, a trusted friend, a professional fiduciary, or a bank, or you can name your daughter-in-law as trustee alongside an independent co-trustee. You set the distribution ages, for example one-third at 25, one-third at 30, and the balance at 35, and you decide what the trustee may spend on in the meantime. You can also direct that the trustee, not the parent, pay tuition and medical bills directly to the provider. Our page on trusts in New York explains the options.

Trust provisions that keep property in the bloodline under New York law

You can create the trust during your lifetime under EPTL 7-1.17, which requires a signed writing that is either acknowledged like a deed or witnessed by two people, or you can create it in your will. Provisions that matter for this purpose:

• Lifetime interest for your son, remainder to his children: your son receives income, and principal in the trustee's discretion, for life. He never owns the principal, so it is not part of his estate for intestacy or for his wife's elective share under EPTL 5-1.1-A.
• Spendthrift clause: EPTL 7-1.5 already makes a beneficiary's right to income non-assignable unless the instrument says otherwise. A drafted clause extends the protection to principal and to claims by a divorcing spouse.
• Limited power of appointment: if you want your son to be able to adjust how the remainder is divided among his children, give him a power exercisable only in favor of your descendants. Excluding spouses from the class of permissible appointees is what keeps the property in the bloodline.
• Definition of "descendants": state whether adopted children and stepchildren are included. New York's default rules on adoptees appear in Domestic Relations Law 117.
• Independent trustee for discretionary distributions: if your son or daughter-in-law serves as trustee, give discretionary distribution decisions to an independent co-trustee so the standard is enforced.

One limit applies in New York that does not apply in some other states. EPTL 9-1.1 keeps the rule against perpetuities: interests must vest within lives in being at the trust's creation plus 21 years. A trust governed by New York law cannot last forever. It can last through your grandchildren's lives and 21 years beyond, which covers most families' goals. Perpetual "dynasty" trusts marketed online rely on the law of states such as Delaware or South Dakota and require a trustee in that state.

If your son divorces: inheritance as separate property

Property your son inherits from you is his separate property in a New York divorce under Domestic Relations Law 236(B)(1)(d)(1), which excludes property acquired "by bequest, devise, or descent, or gift from a party other than the spouse" from the marital estate. Separate property can lose that status. Depositing the inheritance in a joint account, retitling real property in both names, or using it to buy a marital home converts it. Under DRL 236(B)(1)(d)(3), appreciation of separate property that results in part from the other spouse's efforts is marital property.

Property held in a trust you created is in a stronger position. Your son's interest as a beneficiary is not an asset he acquired during the marriage, and the trustee's discretion over principal makes it difficult for a matrimonial court to treat the principal as his. Distributions he receives can still be counted as income for maintenance and child support.

What your son can do on his own

If you have already left property to your son outright, or intend to, the protection has to come from his side. He can ask his wife to sign a prenuptial or postnuptial agreement waiving the right of election under EPTL 5-1.1-A(e) and confirming that inherited property stays separate. He can keep inherited funds in an account in his own name and avoid commingling. He can sign a will leaving the inherited property to his children. Without a waiver, his wife's elective share remains available against his estate regardless of what his will says.

Frequently asked questions

Does my daughter-in-law get anything from my estate if my son dies before me?

No. She is not a distributee under EPTL 4-1.1 and is not a substitute taker under EPTL 3-3.3. Your son's share goes to his children. She may end up controlling that money as their guardian or custodian if they are minors, unless you leave it in trust.

If I leave everything to my son and he dies a year later, does his wife get it all?

If he dies without a will and without children, yes, under EPTL 4-1.1(a)(2). If he has children, she takes $50,000 plus half the balance. If he has a will leaving it to his children, she can still elect to take the greater of $50,000 or one-third under EPTL 5-1.1-A unless she waived that right in writing.

Can I write in my will that my daughter-in-law gets nothing?

You can, but it accomplishes little on its own because she was never going to take from you directly. What matters is whether your son's share passes to him outright or in trust. A trust is the only way to control what happens to the property after it leaves your estate.

Can I name my daughter-in-law as trustee for my grandchildren?

Yes. Many grandparents do, often with an independent co-trustee who must approve distributions of principal. You can also provide that a successor trustee takes over if she remarries or if a court finds she has breached her duties.

Talk to us

A will or trust that keeps property in the bloodline has to account for New York's intestacy rules, the anti-lapse statute, the right of election, and the Surrogate's Court rules on minors' property. If you want to set one up, or if your son has died and you need to understand how your grandchildren's shares will be handled, the Law Offices of Albert Goodwin can help. Call us at 212-233-1233 or email [email protected].