Here’s a question that attorneys (remarkably) hear all too often. As a spouse in New York, am I permitted to write my partner out of my will? That seems like a pretty basic premise, right? For any myriad number of reasons, would you have a right to elect that your spouse not receive any of your estate? I’m not sure if the answer will surprise or not, but New York has established a firmly rooted public policy against such testamentary abuses. So long as there isn’t an enforceable pre-marital, ante-marital or elective share waiver agreement in place, New York has put into place certain rules protecting spouses from being disinherited.
This point bears a few moments of explanation, since nothing is ever as simple as it may at first sound. When it comes to drafting your will, the law is fairly lenient in terms of how it will allow you to dispose of your assets. That said, if you have a burning desire to write your spouse out of your will, by all means go ahead and do so. The admonition I’ll give you, however, is that you need to recognize that New York law protects spouses from outright disinheritance.
Codified in the state’s Estates Powers & Trusts Law, spouses who are disinherited, given less than they are due at death or who receive their inheritance in trust versus an outright distribution, have the right to choose what is known as an “elective share" of their deceased partner’s estate rather than the lesser amount they were bequeathed. What does this mean in practice? Basically, if you happen to be on the wrong end of the receiving stick at the time of your spouse’s death, the law permits disenfranchised spouses to take approximately one-third (1/3) of the decedent’s net estate, which includes not only the estate’s net probate assets, but also all testamentary substitutes. All in all, that’s not a bad deal when compared to the possibility of being written out entirely.
If you believe you’ve been unfairly treated in your spouse’s probated will, it’s imperative that you speak with qualified counsel about your rights. If you are in fact entitled to receive an elective share, New York places very strict time deadlines on when you must file the necessary paperwork to claim your share, so act quickly!