Legal Rights of a Widow
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FAQ about legal rights of a spouse after death
Legal Rights of a Widow / Spouse, After Death of a Loved One
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 whether 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 do so at least 5 years prior to applying for such assistance.
My spouse died and I am not covered in a will, what do I do? Consult with an attorney right away.
You may need to file a claim 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 whether children are involved and other factors.
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 claim and 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.
What is an ante-nuptial or waiver?
An ante-nuptial is an agreement or waiver that generally 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, in most situations. 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 or the time to file has expired.
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 can effect the spouse’s ultimate distribution.
Probate & Estate Administration (Will) Specific Practice Areas
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