Pretermitted Spouse in New York: Does Marriage Revoke a Will Made Before the Wedding?

Written and reviewed by Albert Goodwin, Esq., Law Offices of Albert Goodwin, a New York estate and Surrogate's Court practice. Last reviewed: 2025.

The Short Answer

New York has no pretermitted spouse statute. If your spouse signed a will before you married and never updated it, the marriage did not revoke or change that will. The will is probated as written.

Your protection is the right of election, also called the elective share, under EPTL 5-1.1-A. For deaths after August 31, 1992, a surviving spouse can claim the greater of $50,000 or one-third of the decedent's net estate, no matter what the will says and whether or not the decedent had children. If the net estate is less than $50,000, the spouse can claim all of it.

This page focuses on the situation most people mean by "pretermitted spouse": a will made before the marriage that leaves the new spouse nothing. It explains why New York handles that case differently from many other states, and what an omitted spouse has to do, and by when.

How New York Differs From Pretermitted Spouse States

In states that follow the Uniform Probate Code, Section 2-301 gives a spouse who married the testator after the will was signed an intestate share, unless the will shows the omission was intentional or the spouse was provided for outside the will. California has a similar rule in Probate Code Section 21610. These are true pretermitted spouse statutes. They assume the testator simply forgot to update the will.

New York does not make that assumption. Its rules on the subject break down as follows:

• Marriage: A later marriage does not revoke a will. The ways a will can be revoked are set out in EPTL 3-4.1, such as a later will, a signed writing revoking it, or destroying it with intent to revoke. Getting married is not one of them.
• Divorce: Divorce works the other way. Under EPTL 5-1.4, a final divorce or annulment automatically revokes gifts to the former spouse and appointments of the former spouse as executor or trustee. The same rule reaches many beneficiary designations and revocable trust provisions.
• After-born children: New York protects children born or adopted after a will is signed under EPTL 5-3.2. That statute applies to children only. It does not help a spouse.
• Omitted spouse: The remedy is the elective share. It applies the same way whether the will was signed before or after the wedding, and whether the omission was accidental or deliberate.

The practical result is that an omitted spouse in New York gets nothing automatically under a pre-marriage will. You must file a timely notice of election to receive your share.

Elective Share vs. Intestate Share

These two figures are often confused, including on older versions of this page.

• Elective share (there is a will, or assets pass outside the will): The greater of $50,000 or one-third of the net estate, under EPTL 5-1.1-A(a)(2). There is no distinction based on children.
• Intestate share (no valid will): Under EPTL 4-1.1, a spouse with no surviving issue of the decedent takes the whole estate. A spouse with surviving issue takes $50,000 plus one-half of the rest.

The elective share is reduced by whatever the spouse already receives under the will or through testamentary substitutes. A spouse who is left a modest bequest can still elect and receive the difference up to the full one-third.

What Counts Toward the Net Estate

The one-third is measured against more than the probate estate. The net estate starts with the probate assets, minus debts, administration expenses, and reasonable funeral expenses (estate taxes are not deducted). It then adds back the testamentary substitutes listed in EPTL 5-1.1-A(b), including:

• Gifts made within one year of death, to the extent they exceed the federal gift tax annual exclusion
• Gifts made in contemplation of death
• Bank accounts held jointly, in trust for another person, or payable on death, to the extent of the decedent's own funds
• Property held in joint tenancy or tenancy by the entirety
• Transfers where the decedent kept the income, the use of the property, or the power to revoke, which covers most revocable living trusts
• Retirement, pension, deferred compensation, and similar plan benefits
• Property over which the decedent held a general power of appointment

Moving assets into a revocable trust or a joint account does not defeat the elective share. Those assets are counted, and the people who received them can be required to contribute.

Worked Example: Computing the Elective Share

Assume a husband dies with a will signed ten years before his second marriage. It leaves everything to his two adult children. His wife receives nothing under the will or otherwise. His assets are:

• Probate estate: $900,000
• Joint bank account with his daughter, funded entirely by him: $300,000
• Cash gift to his son eight months before death, in 2024: $150,000
• Debts, funeral costs, and administration expenses: $82,000

The calculation runs as follows:

1. Probate estate minus debts and expenses: $900,000 − $82,000 = $818,000
2. Joint account (decedent's contributions): $300,000
3. Gift within one year, less the 2024 annual exclusion of $18,000: $150,000 − $18,000 = $132,000
4. Net estate: $818,000 + $300,000 + $132,000 = $1,250,000
5. One-third: about $416,667, which is greater than $50,000

The wife's elective share is about $416,667. Under EPTL 5-1.1-A(c), the burden is shared ratably among the people who received property:

• Probate estate: $818,000 / $1,250,000 × $416,667 ≈ $272,667
• Daughter (joint account): $300,000 / $1,250,000 × $416,667 ≈ $100,000
• Son (gift): $132,000 / $1,250,000 × $416,667 ≈ $44,000

Had the wife looked only at the probate estate, she would have measured her share against $818,000 and claimed about $272,667. The testamentary substitute rules add roughly $144,000. This example is simplified. Actual cases often involve valuation disputes, retirement accounts, and real property titled in several ways.

Deadline and How to File the Notice of Election

Under EPTL 5-1.1-A(d), the right of election must be exercised within six months from the date letters testamentary or letters of administration are issued. In no event can it be made later than two years after the date of death. The Surrogate's Court can extend the time for reasonable cause, but you should apply before the deadline runs.

To make the election, you must:

1. Prepare a written notice of election.
2. Serve it on the personal representative of the estate, in person or by mail.
3. File the notice, with proof of service, in the Surrogate's Court where letters were issued.

If the executor disputes the election, the court decides its validity and effect in a proceeding under SCPA 1421. The amount actually paid is usually fixed later, often through an estate accounting. That is where many disputes over valuations and deductions take place.

When the Will Is Contested or Assets Are in a Trust

A will contest can delay the issuance of letters for a long time. The two-year outer limit still runs from the date of death. A surviving spouse waiting on a contested probate should not assume the clock is paused. Talk to counsel about protecting the election while the contest is pending.

If most of the assets sit in a revocable trust, the trustee is not the executor, but the trust assets are still testamentary substitutes. The trustee and trust beneficiaries can be made to contribute their ratable share. See our page on trust disputes in New York for more on trustee duties.

Waivers: Prenuptial and Postnuptial Agreements

A spouse can give up the right of election. Under EPTL 5-1.1-A(e)(2), the waiver must be in writing, subscribed by the spouse giving it up, and acknowledged or proved in the manner required for recording a deed to real property. A waiver can be signed before or during the marriage. A properly executed postnuptial waiver is valid. Signing after the wedding is not a defect.

The acknowledgment requirement is strict. A signature alone is not enough, and neither is a notary stamp that lacks the proper certificate of acknowledgment. In Galetta v. Galetta, 21 N.Y.3d 186 (2013), the Court of Appeals held a prenuptial agreement unenforceable because the acknowledgment certificate was defective, and it refused to let the defect be cured years later. That case arose under the Domestic Relations Law, but the same formal standard governs elective share waivers, and Surrogate's Courts apply it closely.

Even a properly acknowledged agreement can be challenged on other grounds, such as fraud, duress, or overreaching. In Matter of Greiff, 92 N.Y.2d 341 (1998), the Court of Appeals held that the party challenging a prenuptial agreement does not get a shifted burden just because the couple was engaged. The burden shifts only if the challenger shows a relationship of trust that one party actually exploited. Fairness challenges are harder to win than formal defects.

When a Spouse Is Disqualified

Under EPTL 5-1.2, a surviving spouse loses the right of election and intestate rights in several situations, including:

• Divorce or annulment: A final decree recognized as valid in New York.
• Void marriage: For example, a bigamous or incestuous marriage.
• Separation judgment: A final judgment of separation rendered against the surviving spouse.
• Abandonment: The surviving spouse abandoned the decedent and the abandonment continued until death.
• Failure to support: The surviving spouse had a duty to support the decedent, failed or refused to do so, and did not resume support before death.

The party seeking disqualification has the burden of proof. Separately, under the common law rule of Riggs v. Palmer, 115 N.Y. 506 (1889), a person who intentionally kills the decedent cannot profit from the death.

The Abandonment Standard

Living apart is not abandonment by itself. In Matter of Riefberg, 58 N.Y.2d 134 (1983), the Court of Appeals described abandonment as a departure that is unjustified, without the other spouse's consent, and made with the intent not to resume the marriage. A couple who agreed to live separately, or a spouse who left for good reason, does not meet that test. A pending divorce that was never finalized does not end the marriage.

Late-Life and "Predatory" Marriages

Some disputes involve a spouse who married an elderly decedent who lacked capacity. In Campbell v. Thomas, 73 A.D.3d 103 (2d Dept 2010), the Appellate Division used its equitable power to deny the elective share to a spouse who married the decedent knowing he could not consent. This area has also drawn legislative attention, so you should check the current text of EPTL 5-1.2 when evaluating one of these claims.

The Family Set-Aside Under EPTL 5-3.1

Apart from the elective share, a surviving spouse is entitled to certain exempt property under EPTL 5-3.1. If there is no surviving spouse, these items go to the decedent's children under age 21. The current limits are:

• Household furniture, appliances, electronics, clothing, and similar items: up to $20,000
• Family bible, pictures, books, computers, and software: up to $2,500
• Domestic and farm animals, farm machinery, and a tractor: up to $20,000
• One motor vehicle: up to $25,000
• Money or other personal property: up to $25,000

The set-aside passes regardless of what the will says and generally ahead of creditors. The money allowance can be applied to reasonable funeral expenses if other assets are insufficient. Because the statute is amended from time to time, confirm the figures that apply to the date of death.

Illustrative Scenarios

The following are hypotheticals to show how the rules apply. They are not descriptions of actual clients or results, and outcomes in any given case depend on its facts.

Pre-marriage will: A woman signs a will in 2015 leaving everything to her two sons. She marries in 2021 and dies in 2024 without changing it. Her probate estate is $600,000 with $30,000 in expenses, and she has no testamentary substitutes. The will stands. Her husband files a notice of election four months after letters issue. His share is one-third of $570,000, or $190,000, plus the set-aside. The sons share the rest.

Funded revocable trust: A man transfers his co-op and a $700,000 brokerage account, worth $1.2 million together, into a revocable trust for his children. His probate estate is $40,000 and expenses use all of it. His wife is left nothing. Looking only at the probate estate, she would get almost nothing. Counting the trust, the net estate is $1.2 million and her elective share is $400,000, payable from the trust.

Unacknowledged prenup: A couple signs a prenuptial agreement in which each waives the right of election. Both sign it, but there is no certificate of acknowledgment. When the husband dies, the executor relies on the waiver. Under EPTL 5-1.1-A(e)(2), a waiver that was not acknowledged is ineffective. The surviving wife can likely elect, although other parts of the agreement may raise separate questions.

Separated but not divorced: A couple lived apart for five years by mutual agreement and never obtained a divorce or separation judgment. When the husband dies, his siblings argue the wife abandoned him. They bear the burden of proving an unjustified departure without his consent. A mutual decision to separate generally does not meet the Riefberg standard. If the couple signed a separation agreement, the key question becomes whether it contains a properly acknowledged waiver.

Frequently Asked Questions

Does marriage revoke a will in New York?

No. A will signed before marriage remains valid after the wedding. The surviving spouse's protection is the elective share.

What if the will was made before we married?

The will is probated as written, even if it leaves you nothing. You can file a notice of election within six months of letters issuing, and no later than two years after death, to claim the greater of $50,000 or one-third of the net estate.

Can a spouse be completely disinherited in New York?

Only with a valid written waiver that was subscribed and acknowledged, or if the spouse is disqualified under EPTL 5-1.2. Otherwise the elective share cannot be defeated by the will or by moving assets into most non-probate forms.

Does divorce revoke a will in New York?

A final divorce or annulment revokes provisions for the former spouse under EPTL 5-1.4. The rest of the will remains in effect.

Is life insurance included in the elective share?

Life insurance proceeds are generally not listed among the testamentary substitutes in EPTL 5-1.1-A(b). Retirement accounts, joint accounts, and revocable trusts are. Have the specific asset reviewed before assuming either way.

Related Pages

• Contesting a will in New York
• Estate accounting proceedings
• Inheritance disputes in NYC
• A sample NYC probate timeline
• Letters testamentary
• Breach of fiduciary duty by an executor or trustee

Talk to a New York Surrogate's Court Attorney

If you were left out of a will made before your marriage, the six-month and two-year deadlines start running quickly. We can review the will, any prenuptial or postnuptial agreement, and the non-probate assets, and file and enforce a notice of election in Surrogate's Court. Call the Law Offices of Albert Goodwin at (212) 233-1233 to schedule a consultation.

This page provides general information about New York law and is not legal advice. Reading it does not create an attorney-client relationship.