The most frequently asked question by people who are planning the distribution of their estate is can I disinherit my spouse or can I leave them less than half of my estate?

The answer to the former is typically no, and the answer to the latter is typically yes.

DO Have the Spouse Sign a Waiver

Under New York Law, you cannot disinherit your husband or wife by simply leaving them out of your will or trust instrument.  In order to effectively exclude the surviving spouse from inheriting from your estate, that individual must sign a waiver disclaiming their rights.  Ideally, the waiver should be executed simultaneously with your estate planning documents.  Just as you would have a prenuptial agreement prepared before getting married, you must have the spouse waive their inheritance rights in an agreement during the marriage. A prenuptial agreement alone will not suffice.

DO Educate Yourself on Spousal Election Rights

What happens if your not so loved one refuses to sign a waiver? Must they inherit your entire estate or at least half upon your death? The current law in New York State as of date is the following: if you fail to provide for your spouse in your Last Will and Testament, the surviving partner (assuming you have died first) has the right to take one-third of your estate. To illustrate an example consider the following fact pattern: John is survived by his spouse Jane and his two children.  John’s will reveals that he left his estate worth of $1,000,000.00 to his two children, with no mention of Jane. Pursuant to New York’s “right of election” statute, Jane, as the lawful wife of John, has a claim to 1/3 of his estate: roughly $333,000.00.  Also, take note that if your net worth at death is fifty thousand or less, your partner has a rightful claim to the entire amount.

What happens if the decedent does provide for his wife in the will, but leaves her less than one-third of his estate? Lets assume that John’s will leaves $100,000.00 to Jane and the rest to his children.  What rights does Jane have now? Jane is still protected under the laws of New York in that she has the option to take her allotted share under John’s will (100k) or utilize her right of election rights and make a claim to one-third of the estate (333k).

DO Prepare a Trust Document During Your Life

If you are determined to exclude your spouse from your estate, there are few options to consider.  The first option is the preparation of a waiver, which has to be voluntarily and intelligibly signed by the disinherited spouse.  The document should disclose all assets of the party and explicitly waive right of election rights.  If a waiver is not feasible, consider preparing an irrevocable trust for some of your beneficiaries or leaving a portion of your assets to the person.  Remember that a surviving spouse cannot take more than their right of election share (1/3), unless your will provides for a larger portion to your husband or wife.

DO Make Sure that You Obtain a Divorce Decree if You Are Estranged

Your lawfully wedded wife or husband will not be excluded from your estate if you are estranged or separated.  They will still inherit under the intestacy laws or right of election unless a divorce judgment is obtained during your life. Our law firm recently had a matter in which the couple was estranged for over a decade.  Our client was still able to inherit a significant sum of money from the estate of her predeceased husband.  The truth of the matter is, the estranged couple was too lazy to file for divorce.  They lived apart, had no communications, and had moved on to have children with other people.  Although it worked out well for our client, it did not work out so well for his other children who had to share their inheritance with a woman they never knew existed.

DO Make Sure that the Marriage Is Lawful

This section applies if you truly want to provide for your spouse and have failed to prepare a Last Will and Testament outlining their share.

There are many instances in which upon your death, the other heirs of your estate believe that the surviving spouse is not entitled to share in your estate, and can petition the court to have the wife or the husband’s rights discarded.  Unsurprisingly, extensive estate litigation has arisen involving spousal inheritance rights, especially in the context of right of election.

In a relatively recent decision (2011) published by the Surrogate’s Court in the Suffolk County, a spouse’s right of election rights was challenged when it was revealed that the assumed lawful marriage to the decedent was in fact unlawful.  The court ruled although a surviving spouse commonly has a right of election to claim against the decedent’s estate, this right is not unconditional.  The statute does not apply if it is determined that the marriage between the two parties involved incest, was bigamous, or otherwise unlawful pursuant to the Domestic Relations Law of New York.

In the aforementioned matter, the deceased’s purported spouse decided to pursue his right of election rights against the decedent’s estate.  Following the will of the decedent being admitted to probate, the executor of the estate petitioned the Surrogate’s Court for a proceeding questioning the legitimacy of Kenneth’s marriage to the decedent.

Ultimately, the Judge presiding over the case, ruled that the husband had no right of election privileges to claim against the decedent’s estate, due to the fact that his marriage to the decedent was illegal.  In making that determination, the Judge discovered that at the time the couple got married, the husband’s divorce was not yet finalized with his former spouse, and therefore he was still married to someone else.  The husband failed to produce evidence that the decedent and he subsequently remarried upon him obtaining a judgment of divorce from his first wife.  Consequently, as he was still married to someone else at the time the decedent and him got married, his right of election rights were non existent and not enforceable.  In conclusion, an individual who marries the decedent unlawfully cannot expect to collect their elective share of the estate if in all reality, he or she is not the lawful spouse of the decedent.