Spousal Claim Against a New York Estate

It is Extremely Difficult to Completely Disinherit a Spouse…

Spouses of the deceased have strong inheritance rights under New York law. If the decedent died without a will (intestate), a spouse has the right to fifty thousand dollars and one-half of the residue of the estate. Even if there is a will disinheriting the spouse, a spouse still has a limited time to claim the “elective share” of the greater of fifty thousand dollars or one-third of the estate (up to one-half of the estate if the couple has no children).

New York’s Right of Election Law is what protects spouses from being disinherited. An “elective share” claim, in the amount of either $50,000 or one-third of the estate, is almost always successful. A spouse has six (6) months from the appointment of an executor or an administrator of an estate to file a right of election, and the filing has to take place within two (2) years of the decedent’s death.

A prenuptial agreement may restrict a spouse’s ability to claim a right of election. On the flip side, there are many ways to declare a prenuptial agreement to be invalid.

There are also other ways to fight an elective share claim, such as questioning the validity of a marriage or proving the spouse’s abandonment of the decedent.

New York elective share 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 and make an appointment to discuss spousal claims and rights to the estate.

What the Elective Share Actually Captures

The elective share under EPTL § 5-1.1-A reaches more than just the probate estate. The statute defines a broader concept — the "net estate" — that includes assets passing outside the will. Specifically, the net estate includes:

• The probate estate — property passing under the will or by intestacy.
• Joint and survivorship property held with someone other than the surviving spouse (to the extent of the decedent's contribution).
• Pay-on-death and transfer-on-death accounts payable to someone other than the surviving spouse.
• Gifts made by the decedent within one year of death that exceed the annual gift tax exclusion.
• Property over which the decedent held a general power of appointment.
• Certain retirement accounts and pension plans.
• Life insurance proceeds in some circumstances.
• Property held in a revocable trust that the decedent could revoke during life.

This expanded net estate concept is designed to prevent a spouse from being disinherited through non-probate transfers. A decedent who tries to bypass the spouse by retitling assets into a trust, naming third-party beneficiaries on accounts, or making large lifetime gifts will find that the spouse can still reach the assets through the elective share calculation.

Calculating the Elective Share

The elective share is the greater of $50,000 or one-third of the net estate. The calculation is mechanical once the net estate is determined. The harder question is usually building the net estate — identifying every transfer that should be added back, valuing each, and presenting the calculation to the court.

The spouse's own assets received from the decedent are credited against the elective share. If the will leaves the spouse $25,000 and there is also a joint account with $40,000 that passes to the spouse outside the will, the spouse has already received $65,000. If the calculated elective share is $200,000, the spouse can claim an additional $135,000 from the estate. The spouse is not entitled to "double dip" — the elective share is supplemented by, not on top of, what the spouse already received.

How the Election Is Made

The election is made by filing a Notice of Election in the Surrogate's Court where the estate is being administered. The Notice has to be served on the executor or administrator within six months of the issuance of letters and within two years of the decedent's death, whichever is earlier. Missing the deadline forfeits the elective share.

Once the Notice is filed, the executor has to determine how to satisfy the elective share. The will may direct that the elective share be funded from a particular bequest, in which case that bequest is reduced or eliminated to satisfy the share. If the will is silent, the burden is generally spread across the estate proportionally, with adjustments for any non-probate transfers that have to be clawed back.

Disqualification of the Surviving Spouse

Under EPTL § 5-1.2, a surviving spouse can be disqualified from claiming the elective share — and from inheriting under the will or by intestacy — if any of the following applies:

• The marriage was dissolved or declared invalid before the decedent's death.
• The marriage was void because of bigamy, incest, or another disqualifying ground.
• The spouse procured the marriage by fraud, duress, or undue influence.
• The spouse abandoned the decedent and the abandonment continued until the decedent's death.
• The spouse failed or refused to provide support that was required, and the failure continued until death.
• The spouse killed the decedent.

Disqualification is a frequent battleground in elective share litigation. Family members of the decedent who feel the surviving spouse should not benefit will look for evidence of abandonment or other disqualifying conduct. The spouse will defend by showing that the marriage was intact, even if imperfect, and that any disqualification ground does not apply.

Prenuptial and Postnuptial Agreements

A valid prenuptial or postnuptial agreement can waive the right of election. To be enforceable, the agreement must be in writing, signed by both parties, and acknowledged with the formality required for a deed. Each party must have understood what they were giving up. Adequate disclosure of assets, opportunity to consult independent counsel, and absence of duress are all considerations.

Challenges to prenuptial agreements are common in elective share disputes. The spouse claims the agreement was signed under pressure, without disclosure of the decedent's true assets, or without meaningful opportunity to consult counsel. Whether the challenge succeeds depends on the specific facts and the strength of the documentary record. We have litigated both sides — enforcing well-documented agreements and challenging poorly-documented ones.

The "Abandonment" Defense

Abandonment as a disqualification ground requires more than just separation. The case law looks at three elements: voluntary departure from the marriage, an intent not to return, and the absence of consent or justification. A spouse who left because of domestic violence has not abandoned. A spouse who moved out and continued to participate in the marriage has not abandoned. A spouse who walked out years before death and never came back, made no contact, and provided no support has likely abandoned.

The party asserting abandonment carries the burden of proof. Evidence typically includes testimony about the timing and circumstances of the separation, records showing lack of contact, and proof that the abandonment continued through the decedent's death.

Same-Sex Spouses and Late-in-Life Marriages

Same-sex spouses have the same elective share rights as opposite-sex spouses, both under New York law dating to the 2011 Marriage Equality Act and under the U.S. Supreme Court's decision in Obergefell v. Hodges. A long-term partner who is not married, however, has no elective share rights. Long-term unmarried partners sometimes try to claim under contract theories, common-law marriage (which New York does not generally recognize), or constructive trust, but those theories face significant obstacles.

Late-in-life marriages — particularly those where one spouse is much older or in declining health — sometimes face challenges from the decedent's adult children. The challenge may be to disqualify the marriage as the product of fraud or undue influence or to challenge the legitimacy of the marriage itself. These cases involve careful evidence about the decedent's mental state at the time of the marriage and the circumstances under which the marriage was solemnized.

Talk to an Elective Share Attorney

Spousal claims against a New York estate combine substantive estate law, family law, evidence, and procedure. Whether you are a surviving spouse asserting your right of election or an executor defending the estate against a claim, the work needs to be done by someone who knows the Surrogate's Court well. We have litigated elective share cases on both sides and can help you evaluate where your case stands.