Legal Rights of a Widow

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 whether children are involved. The children will receive the rest. There are testamentary substitutes that may reduce your share, so please consult with an attorney while you and your spouse 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 proper care. A life estate might be in order as well.

Some spouses, especially if they are married for the second and third times, may have a prenuptial, ante-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 pass 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 ante-nuptial or waiver?

An ante-nuptial is an agreement or waiver that states that the spouse will not make any claims against the other spouse’s estate. An ante-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 it 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 after the date of death and for appointment of fiduciary. Testamentary substitutes will change the spouse’s share.