While it is more common to hear of people disinheriting their adult children, disinheriting a spouse is rare. That is because in the State of New York, you cannot disinherit your spouse. You cannot leave the surviving spouse with nothing nor can you leave the surviving spouse with a mere portion of your estate. Stating it in your will or leaving your spouse completely unmentioned in your will is not enough to disinherit your spouse, despite your reasoning.
Spousal Right of Election
New York’s spouse’s right of election essentially protects the spouse from getting disinherited or receiving a small token of the estate. As is common with wills, surviving members of the family often disagree and contest against the contents of the will. According to the spousal right of election, the surviving spouse can elect against the contents of his or her spouse’s will. The surviving spouse can take half of the estate if there are no children involved. If children are involved, the surviving spouse can take a third of the estate or $50,000 depending on which is the greater of the two. The remaining estate then goes to the children or whoever was mentioned in the will. The surviving spouse has six months to elect against the will.
Dying intestate or dying without a will does not disinherit your spouse. If there are no children involved, then the surviving spouse gets the entire estate. If children are involved then the surviving spouse receives $50,000 and half of the estate after taxes and debts are settled. The remaining portion of the estate then goes to his or her children or grandchildren. The surviving spouse has two years after the spouse’s date of death to assert his or her right of election.
Exceptions to the Spouse’s Right of Election
In the state of New York, you cannot disinherit your spouse nor can you give him or her less than $50,000. Divorce is one of the most effective solutions if you do not want your spouse to inherit a portion of your estate. While New York law protects the disinheritance of a spouse, it does not protect the disinheritance of a former spouse. Divorce, essentially, terminates the spouse’s right of election. Unlike the spousal right of election, you can, however, state in your will that you want your former spouse to inherit from your estate.
Abandonment by a spouse is also an acceptable occurrence that can waive the surviving spouse’s right to elect. Spouse’s right of election can also be waived in a prenuptial agreement if both parties enter into the agreement completely informed of what they are waiving and the consequences of waiving this right of election.
To learn more about inheritance laws and estate planning, contact New York probate attorney Rudolf Karvay. If your spouse has disinherited you in the will or did not establish a will at all, our expert attorneys are here to help guide you.