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Estate Planning- Don’t forget Your Spouse

You cannot disinherit your spouse. Make no mistake – you can make a Last Will and Testament that excludes your spouse, but your spouse, if he or she chooses, can “elect” to take a part of your estate.

Whether there is a Last Will and Testament or not, your spouse is entitled to a certain amount of your estate. A surviving spouse (after September 1, 1992) has a right of election to take a share of the decedent’s estate, which is the pecuniary amount equal to the greater of:

  • Fifty thousand dollars ($50,000.00) or,
  • One third of the net estate (see Estates, Powers & Trusts Law (“EPTL”) section 5-1.1-A).

It should be apparent that a spouse can make the right of election, so it is important to know how someone can be disqualified from being considered a spouse. A husband or wife is a surviving spouse … unless it is established satisfactorily … that:

  • A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage or dissolving such marriage on the ground of absence, recognized as valid under the law of this state, was in effect when the deceased spouse died.
  • The marriage was void as incestuous, bigamous, or a prohibited remarriage.
  • The spouse had procured outside of this state a final decree or judgment of divorce from the deceased spouse, of annulment or declaring the nullity of the marriage with the deceased spouse or dissolving such marriage on the ground of absence, not recognized as valid under the law of this state.
  • A final decree or judgment of separation, recognized as valid under the law of this state, was rendered against the spouse, and such decree or judgment was in effect when the deceased spouse died.
  • The spouse abandoned the deceased spouse, and such abandonment continued until the time of death.
  • A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had the means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having the need of support. (see EPTL section 5-1.2).

Another way the husband or wife will be barred from exercising the right if election is murder. The Court of Appeals, in the case of Riggs Et Al. V. Palmer Et Al. (115 N.Y. 506 (N.Y. 1889)), stated the principle that “[n]o one shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.”

To be continued …
Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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