Inheritance Rights of a Surviving Spouse

Q: What inheritance rights does a surviving spouse have in New York?

A: Under New York law, a surviving spouse has a “Right of Election” to avoid against being disinherited by their deceased spouses. Whether the decedent spouse leaves nothing for their spouse in their Will or dies without a Will, the surviving spouse is entitled to a portion of the estate.

When the deceased spouse died without a Last Will and Testament, New York’s intestacy law governs who inherits. The amount passing to the surviving spouse depends on whether the decedent had children. If the deceased spouse had no children, the entire estate passes to the surviving spouse. If the deceased spouse had children, the surviving spouses gets the first $50,000 and one-half of the remaining estate property. The remaining one-half is split equally among the decedent’s children. If any of the deceased's children have passed away but had children themselves, these grandchildren will inherit the portion that would have gone to their parent.

Where the deceased spouse had a Will, New York’s Right of Election (Estates Powers and Trust Law Section 5-1.1) entitles the surviving spouse to a share of the estate, regardless of what the Will states. The surviving spouse’s elective share is the greater of one-third of the estate or $50,000. If the value of the estate is less than $50,000, the surviving spouse receives the entire estate. The elective share is reduced by property that passes outright to the surviving spouse, such as jointly held property or as a named beneficiary of an account.

Likewise, the surviving spouse’s elective share includes not only assets passing through the Will, but to “testamentary substitutes” as well. Testamentary substitutes include gifts made within one year of death, jointly owned property, retirement accounts, revocable trusts, and payable-on-death accounts. Significantly, life insurance is not considered a testamentary substitute.

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A few additional points to keep in mind regarding the right to an elective share. First, one must have been legally married to the decedent at the time of death to exercise the right of election. Divorced or annulled spouses or those who were legally separated at the time of death do not qualify. Second, the election must be timely filed within six months from the date of the issuance of letters testamentary or letters of administration by the Surrogate’s Court. Third, a surviving spouse who "abandoned" the decedent cannot make the election. Finally, a surviving spouse cannot claim the elective share if they waived the right through a prenuptial or postnuptial agreement. An experienced trusts and estates attorney can help guide you through the estate administration process and explain your legal rights as a surviving spouse.

Nancy Burner, Esq. is the founder and managing partner of Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.