Spousal Claim Against Estate Attorney New York

Losing a spouse is one of life's most difficult experiences. When grief is compounded by the discovery that you have been disinherited, left out of a will, or treated unfairly in your spouse's estate plan, the situation can feel overwhelming. Fortunately, New York law provides surviving spouses with powerful protections designed to ensure they receive a fair share of their deceased spouse's estate.

Our New York estate litigation attorneys represent surviving spouses who need to assert and protect their inheritance rights. Whether you are seeking your elective share, challenging a will, or recovering assets that were improperly transferred, we are prepared to advocate aggressively on your behalf during a vulnerable and emotional time.

Understanding Your Rights as a Surviving Spouse in New York

New York is one of many states that does not permit a person to completely disinherit their spouse. Even if a deceased spouse's will leaves nothing—or very little—to the surviving spouse, New York law guarantees that spouse a minimum share of the estate. This protection is rooted in the public policy principle that marriage creates an economic partnership, and a surviving spouse should not be left destitute or unfairly deprived of the wealth accumulated during the marriage.

These rights apply regardless of the length of the marriage, though certain circumstances—such as a valid prenuptial agreement, divorce, or abandonment—can affect or eliminate them. Understanding precisely what you are entitled to requires a careful analysis of the estate, the will, and any non-probate assets.

The Right of Election (Elective Share) Under New York Law

The cornerstone of spousal protection in New York is the "right of election," governed by Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A. This statute gives a surviving spouse the right to claim an "elective share" of the deceased spouse's estate, even if the will provides for a smaller amount or nothing at all.

How Much Is the Elective Share?

Under New York law, the elective share is the greater of:

• $50,000; or
• One-third (1/3) of the net estate

If the entire estate is valued at less than $50,000, the surviving spouse is entitled to the whole estate. The "net estate" is calculated after deducting debts, administrative expenses, and reasonable funeral costs, but before estate taxes.

What Counts Toward the Elective Share?

One of the most important features of New York's elective share law is that it is calculated against the "augmented estate." This means the calculation includes not only the assets passing through the will (the probate estate), but also certain non-probate transfers known as "testamentary substitutes." This prevents a spouse from circumventing the elective share by transferring assets outside the will.

Testamentary substitutes that may be included in the augmented estate include:

• Gifts made within one year of death (above the annual exclusion amount)
• Joint bank accounts and Totten trust (payable-on-death) accounts
• Jointly held property with rights of survivorship
• Property held in revocable trusts
• Retirement accounts and pension benefits
• Life insurance proceeds in certain circumstances
• Property over which the decedent held a presently exercisable general power of appointment

Because these substitutes are factored into the calculation, the value of an elective share claim is often far greater than what appears in the will alone. A thorough investigation of all assets is essential to maximizing your recovery.

Deadlines for Filing an Elective Share Claim

Timing is critical when asserting your spousal rights in New York. The right of election must be exercised within a strict statutory deadline. Under EPTL 5-1.1-A, a surviving spouse generally must serve and file a notice of election within six months after the issuance of letters testamentary or letters of administration—and in no event later than two years after the date of the decedent's death.

The notice must be served on the executor or administrator of the estate and filed with the Surrogate's Court that issued the letters. Failing to meet these deadlines can result in the permanent loss of your elective share rights. While courts may grant extensions under limited circumstances and for reasonable cause, you should never rely on the possibility of an extension. Acting promptly with the assistance of an experienced attorney is the surest way to protect your claim.

Other Spousal Protections in New York

Beyond the elective share, New York law provides additional protections that benefit a surviving spouse.

Intestate Succession Rights

If a spouse dies without a valid will (known as dying "intestate"), New York's intestacy statute (EPTL 4-1.1) determines who inherits. A surviving spouse is entitled to:

• The entire estate if the deceased left no surviving children or other descendants; or
• The first $50,000 plus one-half of the remaining estate if the deceased is survived by children or descendants. The children share the other half.

Family Exemption

Under EPTL 5-3.1, a surviving spouse is entitled to certain property that is set aside and exempt from estate administration and creditor claims. This may include household furniture, appliances, a motor vehicle (up to a statutory value), cash or its equivalent up to a set amount, and other specified property. These exemptions are in addition to the elective share or intestate share.

When a Will Disinherits or Shortchanges a Spouse

It is unfortunately common for surviving spouses to discover, after a death, that their spouse executed a will leaving the bulk of the estate to children from a prior marriage, other relatives, friends, or even charities. In some cases, the will may have been the product of undue influence, fraud, lack of capacity, or improper execution.

If you believe the will is invalid, you may have grounds to contest it in Surrogate's Court. Common grounds for a will contest include:

• Lack of testamentary capacity — the deceased did not understand the nature of the document or the extent of their property
• Undue influence — someone coerced or manipulated the deceased into changing the will
• Fraud — the deceased was deceived into signing the will or about its contents
• Improper execution — the will was not signed or witnessed according to New York's legal requirements
• Forgery — the will or signature is not genuine

Importantly, even if a will is valid, your elective share rights remain protected. A spouse generally does not need to invalidate a will to claim an elective share—these are separate legal avenues that can sometimes be pursued together.

Circumstances That Can Affect or Forfeit Spousal Rights

New York law recognizes that not every surviving spouse should automatically receive an elective or intestate share. Under EPTL 5-1.2, a spouse may be disqualified from receiving a share of the estate in certain situations, including:

• A final decree or judgment of divorce, annulment, or dissolution that was valid under New York law
• A marriage that was void as incestuous, bigamous, or otherwise prohibited
• Abandonment of the deceased spouse by the surviving spouse, where the abandonment continued until death
• Failure or refusal to support the deceased spouse when there was a duty to do so

Additionally, a valid prenuptial or postnuptial agreement may waive a spouse's right of election. If the estate's representatives raise any of these defenses against your claim, it is essential to have skilled legal counsel to challenge them. Allegations of abandonment, in particular, are frequently disputed and require careful factual development.

How Our New York Estate Attorneys Can Help

Asserting a spousal claim against an estate involves navigating complex statutes, strict deadlines, and often contentious family dynamics. Our attorneys provide comprehensive representation at every stage, including:

• Evaluating your rights — analyzing the will, the estate's assets, and any non-probate transfers to determine the full value of your potential claim
• Investigating testamentary substitutes — identifying joint accounts, trusts, life insurance, and gifts that should be included in the augmented estate
• Filing the notice of election — preparing and serving the required notice within the statutory deadlines
• Litigating will contests — challenging invalid wills based on undue influence, lack of capacity, fraud, or improper execution
• Defending against disqualification claims — responding to allegations of abandonment, failure to support, or waiver
• Negotiating settlements — resolving disputes efficiently when possible to preserve family relationships and reduce litigation costs

Why Acting Quickly Matters

The most common reason surviving spouses lose valuable inheritance rights is delay. Once the statutory deadlines pass, the right of election may be forever lost, no matter how strong your underlying claim. In addition, the longer you wait, the more difficult it becomes to gather evidence, locate assets, and preserve witness testimony.

If your spouse has recently passed away and you have concerns about your inheritance, we encourage you to consult with an attorney as soon as possible. Even if you are unsure whether you have a claim, an initial review of your circumstances can clarify your rights and the deadlines that apply.

Protecting Your Future After the Loss of a Spouse

The death of a spouse often brings significant financial uncertainty, particularly when the surviving spouse depended on the deceased's income or shared assets. New York's spousal protection laws exist precisely to safeguard you during this transition. You do not have to accept being disinherited or shortchanged, and you do not have to face the estate's executor or hostile family members alone.

Our firm is committed to helping surviving spouses throughout New York understand their rights and recover what they are lawfully entitled to receive. We handle these sensitive matters with both compassion and determination, recognizing the emotional weight of estate disputes while pursuing the strongest possible outcome for our clients.

If you are a surviving spouse who has been left out of a will, disinherited, or treated unfairly in your spouse's estate, contact our New York estate litigation attorneys today for a confidential consultation. Time limits apply, so do not wait to protect your rights.

Reach out to our office to schedule a consultation. We will listen to your concerns, evaluate your situation, and explain the legal options available to you under New York law. Let us help you secure the inheritance and financial security you deserve.

You can contact us by phone at 212-233-1233 or by email at [email protected].