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New York’s Elective Share Rule and “Sham” Marriages


Under New York law, it is not possible for a person to completely disinherit their own spouse without their consent. The surviving spouse has the right to take an “elective share” of the deceased spouse’s estate. This applies even if the deceased spouse left a will purporting to expressly disinherit the surviving spouse. However, a spouse has the right to waive their right to an elective share, which can be done as part of a prenuptial agreement.

Spouse May Still Inherit Even if Marriage is Voided After Death

An issue that has come up a number of times in recent years before the New York courts is the problem of so-called predatory marriages. This refers to a scenario where someone, often a caretaker, marries an elderly person who lacked the capacity to consent to the marriage. Given New York’s elective share rule, the incentive for the caretaker’s actions should be obvious.

For example, last year a 47-year-old woman in Brooklyn asked the Surrogate’s Court to confirm her elective share in her deceased husband’s estate. The husband was 99 years old at the time of his death. The spouse had served as his caretaker, and only publicly revealed the existence of the marriage after his death. This prompted the decedent’s children to challenge the validity of the marriage, arguing it was the product of “force, duress, or fraud.”

Now, it is possible under New York law to annul a marriage on such grounds, even after one of the spouses has died. But the problem, the Surrogate’s Court explained, was that a post-death annulment would have no effect on the surviving spouse’s right to take an elective share. This is because the surviving spouse’s right to the elective share becomes “fixed and unalterable” once the other spouse dies.


The Surrogate’s Court in the Brooklyn case acknowledged the present state of the law could invite predatory or “deathbed” marriages as a “means of obtaining one third of a decedent’s estate immune from challenge.” To remedy this, a bill now before the New York legislature would disqualify a surviving spouse from receiving an elective share “if the marriage is annulled or voided after the death of the spouse.”

According to justification language attached to the Senate version of the bill (S3345), “several recent court decisions have highlighted a specific type of elder abuse where a person takes unfair advantage of an individual who lacks the capacity to enter into a marriage or otherwise utilizes fraud and undue influence to secretly marry the individual” for purposes of gaining an elective share of their estate.

It is unclear if this legislation will actually make it out of committee in either house of the legislature. Similar proposals have died without formal action in 2017 and 2018.

Get Advice from an Elder Law Attorney Serving Westchester & Putnam Counties

Given the current state of the law, it is a good idea to get your affairs in order before you (or a family member) finds themselves in a vulnerable position. A Westchester County elder law attorney can help you protect your assets from potential exploitation. Contact Meyer & Spencer, P.C., today to schedule an appointment with one of our attorneys.





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