Know Your Rights: Can My Spouse Disinherit Me
by romanaminov
 Estate Planning Law & Wills Blog
Dec 18, 2013 | 31717 views | 0 0 comments | 795 795 recommendations | email to a friend | print | permalink
Law Offices Of Roman Aminov
Law Offices Of Roman Aminov

The Question:

Can my spouse disinherit me? Can I disinherit my spouse? I have been disinherited, do I have any rights? As a New York estate attorney, I frequently hear these and other related questions. Whether it is planning your estate or dealing with the probate process after the death of a spouse, it is important to know New York’s spousal right of election rules in order to protect your rights and advance your interests.

The Law:

In New York, even if a spouse is left nothing under a will, they are entitled to receive the following automatically as per EPTL 5-3.1:

  1. Money or cash equivalents up to $25,000. This includes cash, checking, savings, and money market accounts, as well as CDs.

  2. One automobile with a value up to $25,000.

  3. Household items up to $20,000 including furniture, appliances, jewelry, and clothing of the decedent

  4. Books, computers, discs, software, family pictures up to 2,500.

  5. Domestic and farm animals and farm machinery up to $20,000 (we don’t see this often in New York City).


In addition to the aforementioned property, a surviving spouse can choose to exercise their “spousal right of election” under EPTL 5-1.1A which entitles them to receive the greater of $50,000 or 1/3 of the decedent’s net estate. The net estate consists not only of probate assets (property which is capable of passing by a will), but also of “testamentary substitutes”. Testamentary substitutes include jointly owned property, assets in living trusts, payable on death accounts (also known as Totten Trusts or “in trust for” accounts), pension funds, and even gifts the decedent made one year prior to death. By having such a broad definition of the “net estate”, New York seeks to prevent a spouse for completely disinheriting the other by keeping his money in assets which avoid probate. The surviving spouse has the right of election regardless of whether the decedent left a last will and testament or not. Consequently, even if there was no will, the surviving spouse could elect against the net estate if that would entitle them to a larger share.


The Procedure:

If the surviving spouse did not receive the greater of $50,000 or 1/3 of the net estate, the statute gives them six months from the issuance of letters testamentary or letters of administration, but no later than 2 years after death, to claim their right of election, although there are exceptions to the rule which are outside the scope of this article. The spouse must mail a notice of election to executor or administrator and file and record the original along with proof of service in the Surrogate’s Court. If the will has not been admitted to probate, notice should be sent to the nominated executor.


The spouse has a right to examine necessary parties to determine the nature, location, and size of the net estate. Ultimately, the judge makes the decision as to what the spouse is entitled based on the evidence submitted to the court. The judge has the power to require beneficiaries to give back their portion to satisfy the spouse’s elective share, regardless of whether assets are probate or non-probate. If the decedent had joint accounts which passed automatically to the other owners, or even if the decedent left accounts with beneficiaries who already received their inheritance, the court can ask those beneficiaries to turn over a portion of their share to the surviving spouse.



You may be reading this and wondering if there is any way to exclude a current or intended spouse from claiming their right of election; I frequently get this question from clients. The law provides an exception if a surviving spouse “abandoned” the decedent or failed to support him financially when she had a duty to do so, and the abandonment lasted until death. Abandonment is a tricky thing to prove, but courts have typically defined it as the spouse leaving without consent, without justification, and without intent to return. The easier, and more common approach, is for the couple to waive the rights in a prenuptial (before marriage) or postnuptial (after marriage) agreement. Both spouses should have separate attorneys review the agreements prior to signing them. Failure to do so may allow a court to disregard the agreement because it wasn’t properly understood by the spouse. Just because a couple may have waived their rights in a prenup or postnup does not mean that they can’t designate each other as beneficiaries in the will; it just means that the surviving spouse can not take anything other than what was intentionally left for them.

As with all complex legal situations, an attorney should be consulted in order to properly achieve your objectives, whether they be to successfully recover your spousal right of election, defend the estate against it, or plan to avoid it.

Roman Aminov, Esq. is an estate lawyer concentrating in estate planning, elder law, and probate. He is also a Medicaid attorney experienced in the drafting of trusts, wills, powers of attorney, and health care proxies. For a free consultation, contact us at: Law Offices of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347)766-2685

 Written by: Roman Aminov on 12/18/2013

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