New York Estate Planning & Elder Law Blog
A last will and testament spells out the final wish of the deceased, including how he or she wishes to allocate assets amongst friends and family. However, there are certain limitations to the extent deceased spouses may effectively cut out their surviving spouse from a will. Under New York estate laws, like so many other states, surviving spouses have certain claims to assets that cannot be undone by a will.
If an individual attempts to leave his or her spouse completely out of a will or only leave the surviving spouse a small amount, New York probate courts, known as Surrogate Courts, will step in and apportion a large part of the estate regardless of the text of the will. This is because just like in divorce, spouses have certain rights to community property like homes, cars, and bank accounts.
When someone passes away, with or without a will, all heirs with legal claims to the estate like spouses and children must be notified by the court. Next, the executor of the estate will need to find these persons and ask each of them to sign a waiver giving up their right to challenge the estate. Typically, this is no problem since close family members with estate claims are usually already mentioned in the will and the estate is apportioned fairly.
However, if a spouse is left completely out of a will, she can refuse to sign the waiver and contest the will at probate hearing under New York’s effective share laws. If the deceased left no surviving children, the spouse will automatically receive one half of the estate after debts and taxes are paid out.
If the deceased did have surviving children or no children but grandchildren, the surviving spouse can automatically receive up to one-third of the estate after debts and taxes are settled. However, if one-third of the estate has a value of less than $50,000, the court will make up the difference with additional assets from other beneficiaries.
Certain assets are outside of the jurisdiction of probate courts and will pass directly onto the spouse, regardless of whether or not she is included in a will or such a document exists at all. In New York, surviving spouses automatically receive up to $11,000 in household items, $15,000 in bank accounts or personal property and $10,000 of the value of a car.
It is important to note, divorce or separation terminates all rights to an estate unless terms of the divorce state otherwise. This also prevents an ex or former spouse from acting as an executor to an estate.