Disinheriting a Spouse and the NY Spousal Right of Election

By: Roman Aminov, Esq.

What would you do if you found out that your spouse completely disinherited you? Perhaps you are thinking about disinheriting your spouse in your estate plan. Is your spouse entitled to a portion of your inheritance? It is imperative to know your rights as well as your obligations under New York’s spousal right of election laws outlined in EPTL 5-1.1A.

 A Spouse’s Rights in New York:

New York, under EPTL 5-3.1, allows the surviving spouse to collect certain assets, even if the will bequeaths them to someone else. The surviving spouse can collect cash or cash equivalents, including bank accounts and CDs, of up to $25,000. Additionally, the surviving spouse inherits one automobile of up to $25,000. If the value of the car is greater than $25,000, the spouse can pay the difference to the estate. Household items, including the decedent’s clothes, furniture, appliances, and jewelry up to $20,000 are also passed to the spouse. The decedent’s family pictures, books, computers, discs, and software, up to $2,500 are also given.

In additSpousal right of electionion to the allowances under EPTL 5-3.1, the surviving spouse is given a right under EPTL 5-1.1A to take the greater of 1/3 or $50,000 from the decedent’s “net estate” which is defined as the probate estate plus “testamentary substitutes” under the statute. This includes assets passing under a last will and testament along with jointly owned property and bank accounts, payable on death accounts (POD), assets held in a living trust, assets with beneficiary designations (other than life insurance or certain ERISA plans), and gifts made by the decedent within one year of death. The law’s intention is to allow the surviving spouse to access their elective share even if the decedent used techniques to avoid probate. If the decedent did not leave a will, and their assets pass under intestacy, the right of election still exists. If the spouse’s right of election would result in a greater inheritance than intestacy, he has the right to exercise it.

The right of election can be exercised within fix months of the Surrogate’s Court issuing letters testamentary (if there was a will) or letters of administration (if there was no will). If letters were not issued, the spouse has two years after death to make the election. There are exceptions to these time restrictions and judges are allowed leeway, but it is important to act as quickly as possible to avoid running afoul of these restrictions. If the right of election is allowed, the judge can claw-back bequests left to other beneficiaries to satisfy the spouse’s interest. The spouse, usually through their estate lawyer, is allowed to take depositions of the executor and beneficiaries to determine what assets the net estate consists of.

Exceptions to the Spousal Right of Election:

There are certain limitations on the spousal right of election. First, a spouse who has “abandoned” the predeceased spouse is disqualified from making the election. More commonly, waivers of the right of election are signed in prenuptial or postnuptial agreements. In order to be effective, the waivers must be fully understood and agreed to by the waiving party. It is highly recommended that each side have their own attorney review the agreement and advise them accordingly. Otherwise, a judge may disregard the agreement on the basis that it was not entered into with the full knowledge of the parties. Remember: just because the agreement allows one spouse to disinherit the other does not mean that they have to. Spouses can always leave each other whatever they want; they just won’t be obligated to.

Whether you have lost a spouse and been disinherited or are wondering about how plan your estate properly, it is vital that you speak to an estate planning attorney who can explain your rights. Our law office routinely assists individuals in these situations and offers a free consultation. Contact us today at 347-766-2685.

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