Pretermitted Spouse Rights, With Examples and Loopholes

pretermitted spouse rights in New York

A surviving spouse is entitled to 1/3 of an estate the decedent had children, or ½ of the estate if the decedent did not have children.

If your spouse died without updating his will after getting married to you then you have the 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]

There is no specific pretermitted spouse rule in New York, but elective share would be applicable.

As a spouse of a person who died in New York, you have fundamental property rights in their estate. But the people who are benefitting from the will or estate may set up barriers to prevent you from getting your share of the inheritance.

Attempted “Loopholes” Claiming that the Pretermitted 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 pretermitted spouse 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 pretermitted spouse 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 pretermitted spouse. [6] This pretermitted spouse defense is commonly used to fight an pretermitted spouse 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.

Attempted “Loopholes” Claiming that there is No Money in the Estate for the Pretermitted Sp0use

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 pretermitted spouse. 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 pretermitted spouse 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 pretermitted spouse 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 pretermitted spouse 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 pretermitted spouse – Establishing the right to an pretermitted spouse is only the first step of the problem. The hardest part of the pretermitted spouse is not the pretermitted spouse 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 pretermitted spouse. 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 pretermitted spouse. 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 pretermitted spouse.

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.

Real-Life Examples

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 pretermitted spouse 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, EPTL § 5-1.3

[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

Attorney Albert Goodwin

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