Ordinarily, in New York State, a decedent is unable to disinherit his or her spouse. According to Section 5-1.1-A , Right of Election by a Surviving Spouse of the Estates, Powers and Trusts Law, a surviving spouse is required to receive a share of the decedent’s estate. It states that the share will be equal to the greater of $50,000 or one-third of the decedent’s estate.
Spousal right of election must be made between six months from the date that the Letters Testamentary are issued, but not later than two years from the date of a decedent’s death. It requires that a written notice of election be served on the executor of the decedent’s estate. The written notice of election may also be served on the individual named as the executor in the decedent’s Will if his or her Will has not yet been probated. Once the written notice is served, it must be filed and recorded with the local Surrogate’s Court.
There are limits to a spousal right of election. These limits include waiving the spousal right of election in a pre-nuptial or post-nuptial agreement. Also, the right is severed if there has been a final divorce or separation agreement prior to decedent’s death. In addition, abandoning a spouse prior to his or her death may preclude an individual from his or her right to election. It is worth noting that for the above agreements to be upheld and enforced by a court of law, both parties to the agreement must be represented by his or her own legal counsel.
The New York State spousal right of election, Section 5-1.1-A of the Estates, Powers and Trusts Law can be complex. If you are looking to disinherit a spouse due to abandonment or through the use of an agreement, it is important to consult an experienced estate-planning attorney who can properly assist you. In addition, if you find that you have been disinherited in your spouse’s Will or estate upon his or her death, it is important to seek legal counsel in a timely manner.
If you are in the process of estate planning, an experienced attorney can provide you with the legal guidance necessary to help plan for your family and loved one’s futures. From the simple to complex, the attorneys at Blodnick, Fazio & Associates are skilled in all aspects of estate planning and are dedicated to representing their clients with diligence and compassion. With an office conveniently located in Garden City, Nassau County, the firm is dedicated to providing high quality legal representation at reasonable costs. Call (516) 280-7105 to arrange a free consultation.