Spousal Disinheritance: Yay or Nay?

Read on how a Brooklyn probate lawyer can help you plan your estate!

In succession law, disinheritance is the act by which the testator deprives the legitimate heir of the portion of the hereditary wealth that the law reserved for the said heir. It is not uncommon for individuals with high net worth to consider disinheriting their spouse for different reasons, but whether they can do it or not is the question.

Can a spouse be entirely disinherited by their spouse under New York law? How and to what extent does New York’s spousal right of election laws protect a spouse? How can a Queens probate lawyer help you with that? Let’s find out!

Spousal Disinheritance

Although it is not uncommon to think of disinheriting your spouse, it is extremely rare to make it happen due to the right of election by the New York Estates Powers and Trust Law (EPTL) Section 5-1.1- A provides to a spouse. Unlike disinheriting an adult child, which can take place for any causes expressly indicated by law, under EPTL 5-1.1A, you cannot leave your spouse penniless whether you clearly mention it in your will.

The Right of Election Provided by the Law

In the Presence of a Will

A spouse has rights in New York under EPTL 5-3.1 that prevent them from being disinherited by their spouse, no matter what the will says. Under the law, the disinherited spouse is entitled to an elective share, usually a third of the deceased’s net estate or $50,000, if children are involved. The spouse gets half of the deceased’s estate if there are no children.

For example, a decedent dies, leaving a will inheriting all their assets to their three children from their previous marriage and omitting their current spouse from inheriting any of it in the absence of a prenuptial or postnuptial agreement. In such a case, the New York law provides the surviving spouse with a clear right to claim their elective share. All they need is to have their Queens Probate lawyer file their claim with the NY State Courts.

The beneficiaries also have the right to fight the claim, which requires them to show that the surviving spouse left the deceased or their marriage was invalid. When there are no sufficient grounds, the courts will likely rule against the beneficiaries in favor of the surviving spouse, entitling the latter to their statutory elective share.

The only exception is the presence of a prenuptial or postnuptial agreement drafted by the deceased that can waive the surviving spouse’s right of election. Providing both parties agree, this is the only way to disinherit a spouse entirely. However, it is also not possible if there’s no prenup. Then the only solution to entirely disinherit a spouse is divorce.

In the Absence of a Will

If the deceased failed to draft a will in their life, known as ‘dying without intestate,’ New York’s intestate succession laws divide their property. In the absence of a will, spousal disinheritance isn’t possible.

New York’s intestate succession laws entitle the surviving spouse to inherit everything if the deceased has no will and has no children. If there are children, the spouse is entitled to 50% of the assets and the first $50,000. The rest goes to the decedent’s children.

Hire an Estate Law Attorney Brooklyn!

Read on how a Queens probate lawyer can help you claim your right of

The best way to determine your claim’s validity is to hire a litigation lawyer Brooklyn, whether you’re wondering about estate planning NYC or claiming your right if your spouse has disinherited you. Contact Ledwidge & Associates, an experienced law firm in New York. The expert attorneys at Ledwidge & Associates have provided strong advocacy to clients for years for estate planning Manhattan and other probate and estate administration issues.

Call +1 718-276-6656 or visit their website for a consultation with an experienced Brooklyn probate attorney.

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Spousal Disinheritance: Yay or Nay?

Ledwidge & Associates

Ledwidge & Associates, P.C. in New York City has years of experience helping clients create estate plans that fit their needs. We have the experience and resources to handle your critical legal matters with the utmost care and attention to detail.
Spousal Disinheritance: Yay or Nay?

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