It is common for high-net worth individuals to ponder, “Is it possible to disinherit my spouse?” especially if they have children from a previous marriage or would like to donate all of their assets to charity. While it is common to disinherit an adult child, it’s extremely rare to do it with a spouse in New York. In the absence of a prenuptial or postnuptial agreement, you cannot leave your spouse penniless when you pass away.
If you use clear language in your will that leaves your spouse out or if you fail to mention your spouse in your will, neither will disinherit your spouse because of New York’s spouses’ right of election law.
What is a Spouse’s Right of Election?
In the United States, we have laws that prevent spouses from being disinherited. “New York Estates Powers and Trust Law (“EPTL”) Section 5-1.1- A provides a right of election for the surviving spouse to take a share of his or her spouse’s estate, no matter what the will provides,” according to the Nassau County Bar Association.
Under the current right of election law, a surviving spouse’s elective share is one-third of the estate if there are children involved, or $50,000. If the estate is worth less than $50,000, the value of the decedent’s estate is the elective share. If there are no surviving children, the surviving spouse’s right of election is half of the estate.
Dying Without a Will (Intestate)
When someone dies without a will, it’s called “dying intestate.” When a spouse dies intestate, his or her property will be divided according to New York’s intestate succession laws. If a spouse hopes to disinherit their husband or wife by not leaving behind a will, it won’t work.
Under New York’s intestate succession laws, if a spouse dies without a will and they had no children, their surviving spouse will inherit everything. If they leave behind a spouse and children, the spouse will inherit the first $50,000, and half of the balance. The decedent’s children will inherit the rest of the estate.
Are There Any Exceptions?
If a wealthy spouse drafts a prenuptial or postnuptial agreement, the spouse’s right of election can be waived providing both parties agree. If a postnuptial agreement is out of the question and there is no prenup, divorce is the only way to effectively ensure a spouse doesn’t receive any portion of an estate.
Next: High-Asset, High-Conflict Divorce
To learn more about the spouse’s right of election, contact our firm by calling (845) 605-4330. We look forward to helping you.