Disqualifying an Estranged Spouse from Your Inheritance – EPTL 5-1.2

As we discussed in prior articles, New York makes it difficult to disinherit a spouse. New York Estates, Powers and Trusts Law § 5-1.1-A provides for something called the right of election which allows a surviving spouse to elect to receive a share of the estate regardless of what the Last Will and Testament might say. While this may be subject to further nuance depending on circumstances, generally, in New York, the amount of the surviving spouse’s share is one-third (1/3) of the net estate or $50,000, whichever is greater.  Further, if the total value of the estate is less than $50,000 the surviving spouse may elect to receive the entire net estate.

If the deceased spouse left no Last Will and Testament and died what is called “intestate,” the surviving spouse will inherit according to the laws of intestacy under New York Estates, Powers and Trusts Law § 4-1.1.  This statute provides that a surviving spouse is entitled to a portion of the estate depending upon how many other family members the decedent is survived by.  For example, if the decedent is survived only by their spouse, the spouse is entitled to the entire estate or if the decedent is survived by a spouse and children, the spouse is entitled to $50,000 plus one-half (1/2) of the remainder of the residuary estate.

The rules of intestacy and the right of election will provide for your spouse whether that was your intention or not.  Even if you and your spouse are not on good terms, New York State laws will protect the surviving spouse from being left destitute.  However, it is sometimes still possible to disqualify a surviving spouse from inheriting.

Under Estates Powers and Trusts Law § 5-1.2 there are a few ways a surviving spouse can be disqualified from their elective share or their intestacy share including: (1) a valid divorce decree under the laws of New York was in effect at the time of the spouse’s death, (2) the marriage was void because it was incestuous, (3) a final decree or judgment of separation was in effect at the time the spouse died (4) a final decree or judgment of divorce or separation was procured out of state  (5) the surviving spouse abandoned the deceased spouse and the abandonment continued until their death (6) the surviving spouse failed in their duty to provide for the deceased spouse despite their ability to do so.


New York estates and succession laws are complicated and nuanced.  If you believe a surviving spouse should be disqualified from inheriting from a deceased relative’s estate contact the attorneys at the Law Offices of Roman Aminov, P.C. at 347-766-2685.

This article is for educational purposes only - to provide you general information, not to provide specific legal advice.  Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed attorney in your state.

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