You are always told that you can leave whatever assets you want in your will to whomever you want. After all it is your last will and testament. Your will represents your final wishes and they are to be carried out to the letter. You may be shocked to learn that in some cases under New York law that your will can actually be disregarded almost in its entirety, and that special case comes into play if you do not leave anything to your spouse.
Sacred Institution, Sacred Inheritance Rights
Marriage holds a special place in society and the laws of New York not only reflect that distinctive position but also protects the institution of marriage. Under New York’s Estate Powers and Trusts law section 5-1.1, a surviving spouse has the right to collect assets from a deceased spouse’s estate if the deceased spouse’s will either does not provide for the surviving spouse or does not give enough to the surviving spouse. It does not matter if the will has bequeathed those assets to someone else; the surviving spouse’s rights to the property trumps all others.
Under the New York law, a surviving spouse can collect the greater of either 1/3 of the decedent’s net estate or $50,000. Not only does this apply to property that is passed under the will, but also will substitutes such as jointly owned property, bank accounts, payable on death accounts, assets held in a living trust, assets that have beneficiary designations (except for life insurance) and gifts made by the decedent within one year of death. The law makes it clear that attempting to leave your spouse destitute after you die is against public policy and gives great leeway to a spouse who takes the election.
Not an Automatic Process
The right of election has to happen within a specific time frame after the deceased has passed. It does not happen automatically. The time frame depends on the specific circumstances surrounding the probate process and certain restrictions may apply. Therefore it is important for a spouse who has been disinherited to act as quickly as possible to avoid running afoul of any complications.
Not in Every Situation
Sometimes it is possible that a disinherited spouse will not be allowed to take an election. A spouse who has abandoned the deceased cannot take an election. For example, if you were to leave your spouse and live separately, you might not be able to take an election. Similarly, you a person may waive their right to take an election under a prenuptial or postnuptial agreement.
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