You are probably wondering what a wife, is entitled to after the husband dies. The answer to this question depends on many factors: the residence of your spouse when he died, whether your spouse left a will, whether you have children, what kind of property your spouse left, and whether there was a divorce pending at the time of your spouse’s death.
What the wife is entitled to could differ depending on the state of the husband’s residence
What the wife is entitled to inherit from the husband would depend on the laws of the deceased spouse’s last residence. For example, if your husband, a New York resident, dies without a will with children, you are entitled to $50,000 plus ½ of the remainder. If your husband was a Florida resident who died without a will, on the other hand, you, the wife, are entitled to everything, for as long as the only surviving children are the children you and your husband have, i.e., there are no children from a prior relationship or marriage. Thus, in analyzing what you are entitled to inherit, the first step is determining the residence of your deceased spouse because the residence state’s law will be applied in determining the distribution of your husband’s estate.
Whether your husband left a will
After you identify the applicable law based on your deceased husband’s state of residence, the second step in determining what you are entitled to inherit is to check whether your husband left a will. If your husband left a will, his estate will be distributed in accordance with the will, save for certain exceptions. If your husband died without a will, your husband’s estate will be distributed in accordance with the applicable state laws on intestacy. In New York, the applicable law will be Estates, Powers, and Trusts Law (EPTL) § 4-1.1.
New York intestate distribution under EPTL § 4-1.1
Under EPTL § 4-1.1, if your husband died without a will, what the heirs will inherit depends on who are the surviving heirs:
- If the surviving heir is the spouse only without any children, the spouse gets everything.
- If the surviving heirs are the spouse and children (or descendants of such children), the spouse will get $50,000 plus ½ of the remainder, while the balance (½ of the remainder) goes to the children or their descendants by representation.
- If the surviving heir/s is/are only the child/ren (or their descendants) without a spouse, the child/ren (or their descendants) will inherit the entire estate.
- If there are no children or spouse, the surviving parents will inherit everything.
- If there are no children, spouse, or parents, the descendants of the parents will inherit by representation.
- If there are no children, spouse, parents, or parents’ descendants, one or more grandparents or the descendants of the grandparents will inherit.
The application of this law is pretty straightforward. Usually, the husband dies with a spouse and children, whether from a previous marriage or not. The spouse gets $50,000 plus ½ of the remainder, while the remaining children (or their descendants if they have died) will receive the remaining half.
When do your husband’s siblings (and their descendants, i.e., the husband’s niece and nephew) inherit? Only when there is no spouse, children and descendants, or parents.
When do your husband’s cousins inherit? Only when there is no spouse, children and descendants, or parents and descendants.
New York laws on the distribution of an estate when there is a will
If there is a will, your husband’s requested distribution of his net estate, as stated in the will, will generally be respected. There are exceptions, such as: (a) when he completely omits his wife from the will; (b) when he gives to his wife less than the spousal elective share; or (c) when his estate is not enough to pay for the debts.
The wife is omitted from the will or is left less than the spousal elective share
Under New York law, when a wife is omitted from the will or receives less than the spousal elective share, the wife is entitled to receive $50,000 or 1/3 of the husband’s estate (computed to include testamentary substitutes), whichever is greater if the husband died with children, or $50,000 or ½ of the husband’s estate, whichever is greater if the husband died without children.
This is called the spousal elective share. The wife is entitled to receive it, regardless of whether she was completely omitted from the will. This spousal elective share is the reason why lawyers say the wife cannot be disinherited in New York. The only time the wife cannot receive this spousal elective share is if she has waived it. Usually, the wife’s waiver is embodied in a prenuptial agreement.
What property is included in computing for the spousal elective share
Sometimes, what spouses do to make the spousal elective share smaller is to already give away their property before they die. However, this technique is not effective because, under New York law, some gifts made by the deceased spouse during his lifetime are included in his estate for purposes of computing the spousal elective share.
The following properties are called testamentary substitutes, which are included in the estate of the deceased for purposes of computing the spousal elective share:
- Gifts made in contemplation of death
- Gifts made within one year from the decedent’s death or transfers made to the extent that the decedent did not receive adequate and full consideration for his property
- Totten trust accounts
- Joint bank accounts with rights of survivorship (to the extent of the decedent’s share)
- Property held under joint tenancy with rights of survivorship or payable to another on death (to the extent of decedent’s share)
- Property transferred to another (including trust property) where decedent retained for himself a life estate (except those that were transferred with adequate consideration)
- Retirement accounts
- Property in which decedent held a general power of appointment
- Transfer of securities with transfer on death registration
A hypothetical example of applying spousal elective share
For example, prior to your husband’s death, your husband had $50,000 in a bank account in his own name, $100,000 in a bank account he held with his mom with rights of survivorship, a boat worth $100,000, a retirement account worth $300,000 with his daughter A from a previous marriage as a beneficiary, a single-family home worth $500,000, a bank account worth $35,000 in trust for his son B from a previous marriage.
Three years before your husband’s death, he sold his house worth $500,000 to his daughter A for $250,000, retaining for himself a life estate where he could use the house for the rest of his life. Six months before your husband died, he sold his boat worth $100,000 to his son B for $40,000. When he died, he left a will, giving $10,000 to his mother and the remainder of his estate to you, his spouse. You learned that upon your husband’s death, the only property left in his name is the $50,000 bank account.
If you decide to file your claim for your spousal elective share, how much is your husband’s estate for purposes of computing the spousal elective share?
In this case, your husband’s estate is $745,000, comprising the following: (a) $50,000 bank account in his own name; (b) $50,000 representing ½ share of the bank account held with his mom with rights of survivorship; (c) $60,000, representing the portion of the boat to which your husband did not receive adequate compensation; (d) $300,000 retirement account; (e) $250,000, representing the portion of the house that was not paid for with adequate consideration; and (f) $35,000 from the Totten trust.
The boat was transferred to his son B for inadequate consideration within one year from your husband’s death. Since the value of the boat was $100,000 and the son B only paid $40,000 for it, the $60,000 is considered a gift within one year from his death and is considered part of the estate of the husband for purposes of computing the spousal elective share.
The house was transferred more than one year prior to the husband’s death. However, since the husband retained a life estate over the house, it is considered a testamentary substitute and part of his estate for purposes of computing the spousal share. Only the portion of the house that was not paid with adequate consideration, the amount of $250,000, is added back to the husband’s estate for purposes of computing the spousal share.
The joint account with the mom is presumed 50% owned by the husband for purposes of computing the spousal elective share. The Totten trust account and a retirement account with a beneficiary is also considered a testamentary substitute that is included in the estate of the husband for purposes of computing the spousal elective share.
Claiming your spousal elective share
Since most of your husband’s estate has already been distributed prior to his death, you, as the spouse, need to file your claim with the Surrogate’s Court within 6 months from the date of issuance of letters testamentary or administration, but no in no case later than 2 years after your husband’s death.
By filing a claim with the Surrogate’s Court, you are requesting the court to give you your due, counted from the estate of your husband which should include the testamentary substitutes. It is the court who will decide from which account to derive your spousal elective share from.
What is the wife entitled to inherit when the husband dies pending divorce proceedings
When a divorce has been filed, has not yet been resolved, and the husband dies pending divorce proceedings, you are probably wondering what you are entitled to inherit? In this case, the court will have to dismiss the divorce petition. The court cannot promulgate a divorce decision when one of the parties is dead because a divorce action is personal.
Legally, you will still be considered as the spouse with right to the spousal elective share. The children, however, may contest the validity of your marriage.
Will New York recognize a common-law marriage created in another state?
If you are a common-law wife and the common-law marriage was created in another state that recognized common-law marriages, New York may recognize your marital status as a wife. You will need to prove with the Surrogate’s Court, however, your legal status as a wife, and that all legal requirements of the state for a common-law marriage were met in your case. Once you have proven your legal status as a wife, you are entitled to inherit as a spouse, which includes the spousal elective share.
Other things the wife is entitled to
As a spouse, you are entitled to be appointed as administrator of your husband’s estate if he died without a will. As a legal heir, you can also contest the will.
You are also entitled to collect 100% of your husband’s social security benefit if you have reached full retirement age. However, the amount you can collect will decrease if your deceased husband claimed benefits before reaching full retirement age.
What a wife is entitled to inherit upon the death of a husband may be simple or complex depending on the properties that were left, whether you were omitted from the will, and whether your husband died without a will. Ultimately, it is recommended that you seek advice from a lawyer if you feel you are being shortchanged with what you are getting as your inheritance. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at email@example.com.