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New York City Probate Laws: Spousal Right of Election

There are constantly stories floating around about adults who have decided to disinherit their children. There are considerably fewer stories about spouses deciding that they want to disinherit their spouses. There are a few different reasons for this. First, when most couples reach that stage, they decide that they want to make a clean break of things and go straight to divorce court. Second, New York City probate laws don’t allow you to disinherit your spouse. According to state law, you have to leave your spouse something.

Even if you blatantly state that your wife or husband in disinherited in your will, this typically won’t keep your assets out of a spouse’s hands. New York City probate laws don’t work that way.

New Your City probate laws include something called spousal right of election. These laws have been specifically created to protect angry spouses all over the state from disinheriting one another. They have to be included when the decease’s assets are divided up and assigned to heirs.

If one spouse tries to disinherit the other and then dies, the living spouse is legally allowed to use the right of election to protest the nature of their deceased spouse’s will. If the couple remained childless, New York City probate laws stipulate that they’re entitled to half the estate despite what the will says. If the couple had children, the spouse is automatically entitled to either 1/3 of the total estate or $50,000, while the rest of the estate is divided according to the instructions left in the last will. The probate laws have a 6-month statute of limitations. If the living spouse hasn’t elected against the will at that point, they won’t be allowed to.

Just because someone didn’t have a will when they passed away, it doesn’t mean their spouse will be disinherited, in fact, quite the opposite will take place. If the couple was childless, the spouse inherits all of the estate that remains after outstanding debts have been paid. If the couple had children, the spouse will get either half the estate or $50,000 after taxes and outstanding debts have been resolved. When one spouse dies intestate, the surviving spouse has 2 years to take advantage of their right of election.

While New York City probate laws prohibit the disinheritance of spouse, there are two notable exceptions. The first is divorce. If the couple has severed their marital connection when one of them dies, the surviving spouse isn’t legally entitled to any of the inheritance, unless the will specifically specifies otherwise. The other exception is if the pair is separated. If the spouse who passed away was abandoned by the living spouse, the survivor won’t be able to assert their right of election, although there are some ways this can be fought in probate court. If a prenuptial agreement that included a clause about inheritance was part of the marriage contract, the court might very well wave right of election.

Navigating New York probate laws can get complicated, so turn to the experienced attorneys at Pulvers-Thompson for help. We can help you work through these sensitive issues and insure that your rights are protect during the estate probate process.