Spousal Right of Election

One spouse may be provoked to disinherit the other in many different circumstances. Sometimes a spouse decides to disinherit a spouse because he wants to leave an inheritance to children from an earlier marriage. In other cases, spouses grow estranged; one spouse may develop a pet cause and prefer to leave money to a charity or other organization, rather than the estranged spouse. There are limits to one spouse’s legal ability to disinherit the other. If you are concerned about spousal right of election, New York City estate litigation lawyer Jules Haas provides a free and confidential consultation to answer your questions.

In New York, a spouse that survives the other can avoid being disinherited by the deceased spouse. New York Estates, Powers and Trusts Law (EPTL) section 5-1.1-A provides for an elective share, whereby the spouse who survives can take 1/3 or $50,000, whichever is greater, from the decedent’s net estate, even if the decedent’s will provides otherwise. A net estate incorporates both the probate estate and those assets of the decedent that aren’t probated and that pass by operation of law rather than probate, such as a joint bank account or a retirement account. Other assets that may escape probate are transfer on death designations and living trust assets.

Generally, a surviving spouse has a right of election. However, that right is lost in certain circumstances such as where the survivor abandoned the decedent, failed to support the decedent or divorced the decedent. The right of election could also be lost if it were not asserted in a timely way or if it is waived through a prenuptial or postnuptial agreement.

Effectively, you cannot disinherit your spouse through your will, even if you have been estranged for years and have no interest in leaving any of your property to the spouse. A surviving spouse is able to file a right of election in Surrogate’s Court within six months of the appointment of an executor and letters testamentary being issued. Assuming he or she is successful, assets equal to an elective share will be distributed to him or her.

When a right of election is filed in a timely fashion, the court will be able to satisfy the spouse’s interest even if it means retrieving assets that were bequests to others in the will. Only after the elective share is provided to the spouse will the remainder of the estate be distributed according to the will. A skilled estate litigation attorney can represent you in proceedings involving these issues.

Where there is no will, someone dies intestate and the rules of intestacy will apply. When a spouse dies intestate, the surviving spouse may also assert the right of election if there are no assets passing by intestacy. If the couple had no children, the surviving spouse gets the total estate. However, if someone who has children dies intestate, the spouse gets the first $50,000, along with half of what’s left of the estate. The remainder goes to the decedent’s children. A right of election would be needed if the assets pass to others by operation of law, such as joint assets.

Although a spouse cannot disinherit his or her spouse during the marriage simply by drafting a will to exclude the spouse, it is possible to avoid EPTL section 5-1.1-A through a prenuptial or postnuptial agreement. A prenuptial or postnuptial agreement may be drafted to include a waiver of the right of election. The validity of the waiver will depend on whether it was understood and agreed upon by both spouses. Where a judge determines that one or both spouses entered into the agreement without an understanding of the agreement’s terms, it is possible to set aside the waiver so that it does not take effect.

If you are worried about a spousal right of election in New York City, contact attorney Jules Haas for a free case review. Mr. Haas possesses more than 30 years of experience handling estate litigation and offers reasonable fee arrangements. He represents people in Manhattan and the Bronx, as well as Queens, Kings, Richmond, Nassau, Suffolk, and Westchester Counties. Call us at (212) 355-2575 or contact us through our online form.