What Are My Rights as a Surviving Spouse?

I received a frantic call earlier this year from a woman with two young children whose husband passed away a few months prior without leaving a will. Although she had been appointed administrator of his estate, she quickly realized that all of her husband’s assets had been left to his brother through a beneficiary designation on his investment accounts, and that nothing was left to her or the couple’s children.

In a separate matter, a gentleman contacted me to tell me that his late wife’s will had bequeathed her investment property to a daughter from her first marriage and the rest given to the husband. The problem was that the investment property was worth 80% of the estate and his remainder only 20%.

Both had read my article entitled Disinheriting a Spouse and the New York Spousal Right of Election and realized that they have rights under New York law. What do you think happened next? This article will discuss these two real life examples (with names and select facts changed to protect privacy) of how the spousal right of election in New York operates in the hopes that more people will learn about their rights. For those who haven’t read the prior article on the right of election, let me oversimplify the rule by stating that a surviving spouse is entitled to received the greater of $50,000 or 1/3 of the net state of their predeceased spouse, even if they were left less than that under a will and beneficiary designations.

Case 1: The Husband’s Beneficiary Designations
The first case I described above was complicated by the fact that the husband and wife did not live together for several years prior to the husband’s death. The brother of the decedent claimed that the wife abandoned the husband and therefore was not entitled to her spousal right of election. Time was of the essence and we had to act. First, my office contacted the investment bank which still held the funds and asked them to put a freeze on any distribution, pending a court order. Next, we prepared a petition asking the court to rule that our client had a right to 1/3 of the funds in the account. Finally, we served all the necessary parties and appeared in court. The husband’s brother maintained his position that the wife abandoned her brother and was not entitled to a recovery and was ready to proceed to trial. After months of intense negotiations, we settled the matter without the risk and expense of trial for an amount very close to the full 1/3 she was entitled to.

Case 2: The Investment Property Fiasco
The gentleman whose wife died leaving him everything except the investment property was curious of his rights. After all, his wife did leave him “everything else”; was he really entitled to more? Fortunately for him, the answer was yes. Even though there was a will and he was left the remainder of the estate, after a thorough calculation of all of the assets of the “net estate”, it turned out that he got only 1/5 of the estate, not the full 1/3. In that case, the attorney representing the step-daughter had nothing to defend with and agreed to have his client make up the difference so that my client would receive his full spousal right of 1/3.

Not every client is as fortunate. Quite often, I speak with potential clients who, for different reasons, waited too long to act on their rights before they called our office. One gentleman trusted his stepchildren to do the right thing and take care of him despite not being included in his wife’s will, only to find that they were evicting him from the home he had been living in with his spouse of 20 years.

For every client I can help, there is a client I have to break the bad news to. That is why I write these articles – to help educate people on their rights so that they can speak to a competent and experienced estate attorney before it’s too late.

Roman Aminov, Esq. is an estate planning and elder law attorney at: Law Offices Of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347) 766-2685 Aminovlaw.com
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