First comes love, then comes marriage, then comes a legal inability to disinherit your spouse? It’s true – New York state law prohibits an individual from completely disinheriting their spouse even if they have a Last Will and Testament stating so. New York Estates, Powers and Trusts Law § 5-1.1-A gives a surviving spouse a right of election, meaning they are legally entitled to a certain share of their deceased spouse’s estate. The amount of that elective share depends on the details of the family and the size of the estate. Having a surviving spouse will also affect the decedent’s estate when there is no Will in place through New York’s intestacy laws, which govern the distribution of one’s estate when they pass away without a Will. These laws place an emphasis on providing for a surviving spouse.
These statutes pose an issue for estranged, yet not legally divorced, spouses. It is a known fact that divorces can be extremely draining, both financially and emotionally, but if it is the intention that the parties no longer wish to remain a married couple during their lifetimes, taking that legal step to get a formal divorce can make all the difference when the first spouse passes away.
Whether it be through the Probate or Administration process, the family of a decedent can seek to disqualify a person as a “surviving spouse” and prohibit them from taking a share under the decedent’s estate. Under EPTL § 5-1.2 there are six ways a surviving spouse can be disqualified:
- There is a valid divorce decree under the laws of New York which was in effect when the deceased spouse died.
- The marriage was void as incestuous.
- There is a divorce decree procured outside of the state of New York, although the decree was not valid under the laws of New York.
- The parties had a final decree or judgment of separation which was valid under the laws of New York and in effect when the deceased spouse died.
- The spouse abandoned the deceased spouse, and such abandonment continued until the deceased spouse died.
- A spouse who had the duty to support the other spouse failed to provide such support despite having the ability to do so.
It is important under a Probate or Administration proceeding that the family acts quickly and properly in this process. If a loved one of yours has passed away and you are concerned about a surviving spouse, contact Katz, Smith and Chwat, P.C. to make an appointment today.
Posted in: Estate Planning