One of the most common fights in New York Estate Litigation involves the rights of surviving spouses. Although it helps when we clearly state our wishes in a Will or Trust, there are several issues that might arise after death, which could throw a wrench into even the best-laid plans.
From “common-law” or foreign marriages, to pre- and post-nuptial agreements, to divorce and separation, I often see bad misunderstandings of New York inheritance law. This could be due to the increase of wrong information on the internet, or a general confusion with another state’s laws.
This post is intended to clear up some of the basic rules regarding the inheritance rights of a New York spouse.
- New York is not a “community property” state. This means a spouse can generally acquire and maintain separate property during marriage. Moreover, the owner-spouse may dispose of 100% of their separate property by Will. (In most community property states, a spouse could only dispose of 50% of property they acquired during the marriage).
- When a married individual dies without a Will and children, the surviving spouse is entitled to the first $50,000 of property, plus one-half of the remaining property. The remaining half goes to the children.
- New York does not recognize “common-law marriage,” a union between people who live together but did not obtain a marriage license. Especially in NYC, where almost everyone is from somewhere else, I always receive questions about the inheritance rights of long-term, unmarried partners who died without a Will. More often than not, the partner has no inheritance rights.
- New York does recognize marriages performed in other states and countries, including religious marriages performed by licensed officiants.
- Validly executed pre- and post-nuptial agreements may disinherit a spouse upon death, even if the parties never divorce.
- Spousal inheritance rights are terminated by a divorce, even when the deceased had a Will naming the spouse as a beneficiary.
I believe another reason people often misunderstand spousal inhheritance is because, for each of the general rules described above, there are exceptions, exemptions, and qualifiers that could make the rule inapplicable. For example:
- While it’s true that, generally, a New York spouse may dispose of 100% of their separate property by Will, a different law makes it practically impossible to completely disinherit a spouse. New York’s “spousal elective share” law entitles a surviving spouse to one-third of their spouse’s estate, regardless of any Will. Further confusion exists as to how to calculate the one-third entitlement, as lifetime gifts and joint or beneficiary accounts may count against the share.
- Most people don’t realize there are specific items which pass to a spouse automatically upon death, and are not included in the spouse’s “first $50,000” entitlement. These items include jewelry, household furniture and appliances, a car, and bank accounts with up to $25,000. Under this rule, theoretically, a spouse could collect much more than the first $50,000 of value, before having to share anything with the children of the deceased.
- Common-law spouses may be recognized as a surviving spouse in New York, if they qualified for that status when residing with the deceased in a state that recognizes common law marriage.
- Surviving spouses who were married religiously or abroad may not be entitled to inherit if their spouse remarried in New York without a valid divorce. NYC being a melting pot, I see a surprising amount of these cases. Sometimes an immigrant simply does not know how to legally dissolve their foreign marriage. Sometimes, religious customs do not allow for divorce. In those circumstances, the second spouse is generally presumed to be the surviving spouse.
- Although a valid pre- or post-nupital agreement can disinherit a spouse, even from a spousal elective share, great care must be given to the drafting and execution of any such agreement. High standards must be met, and the agreement must make specific reference to New York’s spousal elective share laws.
- If one spouse dies during divorce proceedings, and the divorce is not finalized with a decree or judgment, the surviving spouse may retain inheritance rights. But there are even exceptions to this exception: usually a legal separation is good enough to terminate inheritance rights. And sometimes, even when there is no legal separation, an individual who abandons their spouse might forfeit their inheritance rights.
As you can see, the issue of spousal inheritance rights in New York can be complex. There are exceptions to almost every rule, and sometimes even exceptions to the exceptions. As always, it’s best to consult a qualified probate and estates attorney to understand your rights in your specific case.
Disclaimer: The information on this website is not legal advice. It is for information purposes only. No user of this site should act or refrain on the basis of this information without seeking legal counsel. This website does not create an attorney-client relationship.
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