Can You Disinherit a Spouse? Spousal Right of Election

Under the EPTL 5-1.1A law in NY a surviving spouse has a right to elect against the will of a predeceased spouse. This is true even if another beneficiary was named. The value is the greater of 1/3 or $50,000 from the net estate which is the probate estate plus testamentary substitutes under the statute.

With regards to cash, bank accounts, CD’s and automobiles and other similar assets the surviving spouse is entitled up to $25,000. When it is a single asset such as a car the spouse has the right to it but must pay back any value greater than the 25,000 to the estate.

For jewelry, clothing, furniture and other physical items from the house, the entitled value is up to $20,000. And for smaller items like computers and books, the value is up to $2,500.

The spouse’s rights are not disqualified even if there was a will, payable on death accounts, living trust or beneficiaries previously defined in the estate. 

This law and special spousal rights were created to ensure the spouse can access the value of the estate even if methods were taken to avoid probate or if the will was never created.

But time is of the essence. As a team of top rated estate lawyers in NY, one of our jobs is to help surviving spouses to maintain their rights. But we must act quickly. Within a set number of months, we must act to exercise your rights. The time starts from the time the Surrogate Court issues letters of testamentary or letters of administration depending on if there was a will or no will.

Estate lawyers also help to take depositions of the beneficiary and executor to determine what assets are contained within the net estate.



There are some exceptions to the spousal right of election:

1. A spouse who has abandoned the predeceased spouse

2. If a waiver of the right of election are signed in prenuptial or postnuptial agreements.

There are other exceptions as well that should be discussed with your attorney.

Get a free consultation with the local estate planning experts at:

Roman Aminov Esq. Estate, Probate & Elder Law of Queens 147-17 Union Tpke, Queens, NY 11367 (347) 766-2685

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