Can you disinherit a spouse in New York?

Disinheriting a spouse is a big decision that can have significant legal implications for many, particularly in states like New York where marital property laws are complicated.

While the concept of disinheriting a spouse may seem straightforward, the reality is far more intricate due to the legal protections afforded to spouses under New York law. Here are some of the basics you should know if you’re contemplating this action for any reason:

Understanding what a surviving spouse is entitled to share

In New York, a surviving spouse is only entitled to a share of the marital property, not a share of their deceased spouses’s separate property. Marital property broadly includes assets and debts acquired during the marriage, regardless of whose name is on the title or account.

This means that a surviving spouse is generally entitled to a fair share of any portion of the estate considered marital property, but they may not be entitled to any share of other assets. That would include assets acquired before the marriage and gifts or inheritances that were solely given to the deceased spouse.

How New York’s state’s elective share laws affect the options

One of the key considerations when disinheriting a spouse in New York is the state’s elective share laws. These laws are specifically designed to protect surviving spouses from being disinherited outright. Under New York law, a surviving spouse has the right to claim a portion of the deceased spouse’s estate as their “elective share,” regardless of what provisions are actually in the deceased spouse’s will.

The elective share in New York is currently set at $50,000 or one-third of the deceased spouse’s net estate – whichever is greater. (If the estate is worth less than $50,000, then the surviving spouse is entitled to the whole thing.) This means that even if a spouse is expressly disinherited in their deceased spouse’s will, they still have a claim.

Exceptions may apply to the elective share choice

Like most things in the law, there are always some exceptions. While elective share laws generally provide surviving spouses with good protection against disinheritance, there are certain circumstances in which the surviving spouse may still be disqualified from claiming their elective share.

These exceptions include situations where the surviving spouse:

  • Abandoned the deceased spouse
  • Caused the deceased’s death
  • Signed a prenuptial or postnuptial agreement

The last is the most common exception to arise. Sometimes (especially when a couple has both been previously married and have children from those prior relationships), each party will agree to disinherit the other. To circumvent the default provisions of New York’s elective share laws, prenuptial and postnuptial agreements can be used. Both prenups and postnups are legal agreements that allow couples to define their own terms regarding the distribution of assets in the event of divorce or death, including provisions for disinheriting a spouse.

However, for a prenuptial or postnuptial agreement to be enforceable in New York, it must meet certain requirements, including full disclosure of assets, absence of duress or coercion and fairness at the time of execution – so this, too, is something that has to be handled with care.  It is also important to note that both individuals should be advised by separate counsel or at least have an acknowledgement that they are entitled and chose to forego the option.

What’s the bottom line?

Disinheriting a spouse in New York is not impossible, but it isn’t exactly a simple issue, either. It’s essential to navigate these matters with the guidance of experienced legal counsel. To accomplish your goals, it may be necessary to consider a combination of steps, such as premarital agreements, trusts and the use of beneficiary designations.

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