You Cannot Disinherit Your Spouse

New York law prevents spouses from being disinherited. Instead, a spouse who is disinherited may go to court and claim their “elective share” which is the greater of fifty thousand dollars or one-third of the estate.

Questions often arise as what the “estate” of the deceased spouse consists of. Naturally, any assets in the decedent’s name only and listed in the estate court proceeding apply. Other assets, known as “testamentary substitutes” because they do not pay by will, and is against which the spouse may make their claim are: bank accounts, investment accounts and retirement accounts with named beneficiaries other than the spouse or, similarly, those same asset if they have a joint owner other than the spouse. An exception would be if the other joint owner had made contributions to the joint account and then as to the contributions only.

Gifts made within one year of death are also available for the elective share claim. Oddly enough, life insurance is not considered a testamentary substitute however annuities are.

A valid and enforceable prenuptial or postnuptial agreement can prevent the spouse from claiming an elective share. Another exception is “abandonment”. In the will of the late Cars rock group’s lead singer, Ric Ocasek, he disinherited his spouse, model Pauline Porizkova, claiming she had abandoned him. However, a simple claim of abandonment is not proof of abandonment and she was reportedly able to settle with his estate saying “They were very fair. They gave me what is mine under New York state law, and we’re done”.

For those who die “intestate” in New York, i.e. without a will, the rules are different. In those cases, the surviving spouse is entitled to the whole estate if there were no children, being in that case the closest relative, or if there were children of the marriage, then fifty thousand dollars plus one-half of the estate.

Keep in mind that the elective share is not automatic. The surviving spouse has to go to court to get it unless the estate chooses to settle the claim.