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Can My Spouse Disinherit Me Under New York Law?


In New York, a spouse cannot entirely be disinherited by his or her spouse. Even in situations where a person makes an express provision in a will that his spouse is not to inherit his property, the surviving spouse is allowed to make an elective share of the deceased person’s estate. Note that when a person dies without leaving a will, a surviving spouse can receive the entire estate, or receive half the estate if the deceased person had children.

Where there is a will that seeks to disinherit a surviving spouse, the surviving spouse is allowed to take an elective share of the estate, which is usually a third of the net estate. The surviving spouse can take the elective share even when the property is bequeathed to another person under the will. However, if a gift was made to another person with the surviving spouse’s consent, the surviving spouse cannot then seek to make an elective share that includes this gift.

A surviving spouse is not generally allowed to take a spousal election from non-marital property. There are various types of properties that are considered non-marital property, most notably, property that it was acquired prior to marriage. This kind of separate property can be transformed into marital property by mixing it with marital property, for example, in a joint account. Property that is held in a trust may also be subject to an elective spousal share depending on the terms of the trust and the circumstances surrounding its creation.

A surviving spouse is not allowed to take an elective share if the spouses were divorced, their marriage was declared legally void, the spouses were legally separated, or if the surviving spouse had abandoned the deceased spouse.

A person choosing to take the spousal election has a limited time within which to make this election. If the spouse fails to make a written election within this time, he or she may lose these important rights under the law. If a spouse has been bequeathed some property in a will by a deceased spouse, he or she should determine if the property exceeds the spousal election share of the estate in order to decide whether it is advantageous to take the election or to inherit under the provisions of the will. This would require finding out the true value of the deceased’s estate, and determining which property would be subject to the elective share. It is important to speak to an experienced attorney before making the choice.

Children do not have a right of election against their parent’s estates, and a parent can disinherit a child, either by expressly saying so in a will, or by not making any provision for the child in a will or other estate planning document.

Contact Us for Legal Assistance

If you have been disinherited by your deceased spouse, you should take advantage of the protections provided under the law to protect your interests in your spouse’s estate. To schedule a consultation and find out more about how you can file a claim for your spouse’s share in the estate, contact an experienced estate planning attorney at Meyer & Spencer, P.C., with offices in Pleasantville and Mahopac, New York, and serving Westchester and Putnam Counties.

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