Legal Rights of a Spouse After Death of a Loved One
Estate administration & probate attorney Bonnie Lawson discusses FAQ about legal rights of a spouse after death.
What are the legal rights of a spouse after death?
Under NY State Law, a spouse, so long as they did not waive their rights in a pre-nuptial, anti-nuptial or other agreement, is entitled to a share of the estate. That share is one half plus $50,000.00 or one third plus $50,000.00, depending on if there are children involved. Subject to changes in the law. If a spouse is in a nursing home and on governmental assistance, the state agency can require the spouse to file a right of election document claiming their share of the estate even if the spouse leaves nothing to them in their Will and other estate documents. A trust can protect against this and protect the assets so that they do pass to the family and not the state. However, one needs to consult with an attorney and at least 5 years prior to applying for such assistance.
My spouse died and I am not left in a will, what do I do?
You file for your share under New York State. That share is one half plus $50,000.00 or one third plus $50,000.00, depending on if there are children involved. What if I am married for the second time and my husband dies, and the children from first marriage want money from his estate? Without a Will, you are entitled to your spousal share, which is either one half plus $50,000.00 or one third plus $50,000.00, depending on if there are children involved. The children will receive the rest. There are testamentary substitutes that may reduce your share so please consult with an attorney while you are both alive and well to make sure your wishes are carried out. You both should have a Will, health care proxy and living will documents, power of attorney documents and perhaps a Trust in place to ensure you are both taken care of. Perhaps a life estate is in order as well.
Some estate planning and discussions are needed in this situation. Some spouses, especially if they are married for the second and third times, may have a prenuptial, anti-nuptual or other type agreement in place, waiving such, so that their children from their first marriage inherit their estate.
What is the right of election?
The right of election is a process that takes place in Surrogate’s Court. An attorney files the necessary forms within the statutory time period to protect spouses from being disinherited from an Estate and claim their share of the Estate. If the process is not completed properly and in time, the spouse may lose their share of the estate forever. This law evolved to protect spouses and families. In early times, spouses would leave their estate to their girlfriend, leaving their wife and family to inherit nothing. Public policy was against this and created this protection under the law. The protection can be waived however, by written consent or failure to file and complete the “right of election” process in Surrogate’s Court.
What is an anti-nuptial or waiver?
An anti-nuptial is an agreement or waiver that states that the spouse will not make any claims against the other spouse’s estate. An anti-nuptial is often used as an estate planning tool to ensure your wishes are carried out as you want them. The tool is frequently used for clients who have been married two or more times and want children from a prior marriage and not the current spouse to receive the assets or at least not as much of the assets as the law would dictate.
Is the spouse entitled to their share if the will was executed before the marriage?
Yes. Unless there is a waiver in place, the spouse is entitled to their elective share. See above.
What disqualifies a spouse from making such an election?
If the marriage is annulled, dissolved, voided or a decree of divorce is issued.
Is the election to receive a spouse’s share automatic and can be done at any time?
No, the election is not automatic. You must hire an attorney and complete the process within the prescribed time which is generally no later than 6-9 months from the date of death, subject to other restrictions. EPTL Sec. 5-1.1: dictates the rights of election and how the assets are calculated to determine the spouse’s correct elective share. Such a right of election must be filed with the Surrogate’s Court within a certain amount of time for the date of death and appointment of fiduciary. Testamentary substitutes will change the spouse’s share so you must conduct the proper estate planning prior.
Please contact the Law Office of Bonnie Lawston for further information and assistance.
Bonnie Lawston dedicates her practice to making the job of the Executor, Administrator, Trustee and Probate or Administration process easy for you. Whether you are a fiduciary, beneficiary or heir, we can help you, protect your interests and maximize your inheritance. The firm has represented individuals throughout the United States and in New York, throughout long island including but not limited to Huntington, Melville, Syosset, Sag Harbor, Garden City, Mineola, Bayshore, Dix Hills, Oyster Bay, Belle Terre, East Norwich, Muttontown, Cold Spring Harbor, Huntington Bay, Lloyd Harbor, Pt. Jefferson, Pt. Washington, Glen Head, Glen Cove, Bayville, South Hampton, Hampton Bays, to name a few, in matters dealing with Estate and Probate administration. For more information, contact Law Office of Bonnie Lawston at (631) 425-7299
for a free consultation.