Problems Associated with Disinheriting Your Spouse & A Surviving Spouse’s Right to the Modern Elective Share

Sally, a 73 year old lady, was disinherited when her husband Bobby died after being married to Sally for 10 years. The marriage was a second marriage for both of them. Everything in Bobby’s will went to Bobby’s family from his previous marriage, and Sally was left with nothing. Does Sally have any rights to her decedent spouse’s assets? How can Sally protect herself?
The short answer is that most states have legislation in place so a legally married spouse cannot be completely disinherited (intentionally or unintentionally), but the surviving spouse must take timely action to claim this right. Estate planning laws vary from state to state and are complex. If you have this problem, ask questions and talk to an estate planning attorney for the specific options and details.

Under New York law, a surviving spouse is entitled to collect certain assets, even if the will leaves nothing to the surviving spouse. Among other smaller assets, New York State gives the surviving spouse the right to take the greater of 1/3 or $50,000 from the decedent’s spouse “net estate.” The law goes so far as to even allow the surviving spouse to access their entitled elective share even when the decedent spouse used techniques to avoid probate and removed assets out of his/her estate via other manners called “testamentary substitutes.”
Keep in mind that even if the decedent spouse did not leave a will, although the decedent spouse’s assets pass under the state’s intestacy laws (laws put in place for when someone passes away without having written a will), the surviving spouse’s right of election still exists. If the spouse’s right of election would result in a greater inheritance than intestacy, the surviving spouse has the right to exercise it.

i-Disinherited-SpouseThe surviving spouse has a choice of (i) accepting the provisions of the deceased spouse’s will (meaning – having been disinherited and not contesting this fact), or (ii) elect to receive their modern elective share and go against the will.  If a decedent spouse left nothing to the surviving spouse and the surviving spouse would like to contest the will, the surviving spouse will need to elect their right to the modern elective share by exercising/filing the proper paper work within six months of the Surrogate’s Court issuing letters testamentary (if there was a will) or letters of administration (if there was no will). If letters were not issued by the Surrogate’s Court, the surviving spouse has two years after decedent spouse’s death to make the election. If the right of election is allowed, a court can “claw-back” bequests left to other beneficiaries to satisfy the surviving spouse’s interest.

Certain situations and circumstance would disallow the surviving spouse from electing their right for their modern elective share. For example, if the surviving spouse is considered to have abandoned the predeceased spouse, the surviving spouse would be disqualified from making the election. In addition, a surviving spouse’s right to the modern elective share can be disallowed with a pre-existing written agreement between the spouses which waives this right.  Examples of such agreements are a pre-nuptial, post nuptial or separation agreement. In order for such types of agreements to be effective, the waiver of the spouse’s right to the modern elective share must be fully understood and agreed to by the waiving party.

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