The rights of a surviving spouse to inherit from a decedent have been referred to in numerous articles in the New York Probate Lawyer Blog. When a person dies without a Last Will, a surviving spouse is provided by Estates, Powers and Trusts Law (EPTL) Section 4-1.1 with at least a fifty percent (50%) share of the estate. When a decedent leaves a Last Will, the general rule is that a surviving spouse cannot be entirely disinherited. EPTL 5-1.1-A entitled “Right of Election of Surviving Spouse” provides that a spouse is to obtain a share of assets equal to approximately one-third of a decedent’s net estate. Thus, if a spouse is omitted from a Will or disinherited in whole or part, the spouse can elect to receive estate assets equal at least to the statutorily required minimum.
It should be noted that inheritance by a spouse is given this protection while other family members do not receive these rights. Even children can be entirely disinherited. Also, the estate tax laws recognize the importance of spousal transfers. The Federal and New York estate tax rules allow a 100% marital deduction for all assets passing from a decedent to a spouse. Continue reading →