Rights Of The New York Surviving Spouse Are Not Clear In Same-Sex Marriages

New York and Federal Laws generally provide many advantages and protections for married individuals. For example, in New York a person may not disinherit his or her spouse. New York Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A provides a spouse with a Right of Election to take a portion of the deceased spouse’s estate. This share is, subject to a complex formula, equal to the greater of $50,000.00 or one-third of the estate.

Similarly, when a spouse dies intestate (without a Last Will), Section 4-1.1 of the EPTL provides for the spouse to obtain the entire estate or at least $50,000.00 and one-half of the residue or balance if the decedent had issue (i.e., children). Also, New York Courts have given spousal status to the surviving spouse of a same-sex marriage performed in a jurisdiction outside of New York.

On the Federal level, the Federal (and New York) estate tax laws provide for a 100% marital deduction for assets passing upon death between spouses. However, the Federal estate tax spousal deduction has been denied to a same-sex couple. As reported in the New York Law Journal on November 12, 2010 by Victor Li, New Challenges To DOMA Filed in Connecticut and New York, the Federal 1996 Defense Of Marriage Act (DOMA) “defines marriage as a legal union between a man and a woman.”

Thus, pursuant to DOMA, and as reported in the Article, the federal estate tax marital deduction was denied to the surviving partner of a same-sex marriage which resulted in a tax liability of $363,053.

As reported, a number of federal lawsuits are pending challenging the constitutionality of DOMA. As can be seen from this controversy, a person’s status as a spouse and as a distributee (next of kin) of a decedent can be the subject of contention and litigation in the New York Surrogate’s Court. The determination of these issues can effect the rights of individuals to inherit from a decedent as well as the tax liability of the decedent’s estate.

New York Probate Attorney Jules Martin Haas handles all types of probate cases, including Wills, estate planning, estate settlement, advanced directives and guardianship matters. Please call me at (212) 355-2575 for a free consultation to discuss your rights.

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