New York Estate Planning With a Second Spouse

Estate Attorneys in New York are routinely consulted with regard to issues concerning the rights of a surviving spouse.  These matters become more complex when one of the parties has had a former marriage.  It is even more complicated where there are children from the prior marriage.

The estate laws in New York and the estate tax laws generally seek to provide protection and advantages for spouses.  For example, Estates, Powers and Trusts Law Section 5-1.1-A entitled “Right of election by surviving spouse” provides that a surviving spouse has a right to inherit a share of a deceased spouse’s estate.  Essentially, the law is intended to prevent a surviving spouse from being disinherited.  

Another example of spousal recognition is in the estate tax laws. Both the Federal and New York estate tax provisions provide for a 100% deduction for all estate assets passing to a surviving spouse. These statutes provide a tax benefit and incentive to pass assets to the living spouse.

In most second spouse situations, a tremendous amount of consideration should be given to estate planning documents such as Last Wills, Powers of Attorney, and Living Trusts. There may be a necessity to insure that some assets belonging to the first spouse to die be designated to pass to members of the deceased spouse’s family relating to his prior marriage such as children or other relatives.

In the event a person dies intestate (without a Will), EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate”, provides that at least 50% of the estate is to be distributed to the current spouse. Also, the current spouse is entitled, pursuant to Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration”, to become the estate Administrator. In this situation, the decedent may have preferred preparing a Will to give a smaller share of the estate to his current spouse and to name someone else as Executor, such as a child from a prior marriage.

Another consideration in second marriage circumstances is to be certain that all beneficiary designations that were made which name the former spouse as beneficiary are changed.   These designations can appear on retirement accounts, life insurance policies and other financial assets.  The New York Probate Lawyer Blog has discussed in prior posts the problems that can arise when a person forgets to change the named beneficiary after a divorce and mistakenly leaves the name of the former spouse on an asset.  These situations can lead to Estate Litigation to clarify the proper beneficiary of the assets particularly where divorce agreements and judgments may have provided for the divorcing spouses to have waived all of their rights to the other’s estate or funds.

There are innumerable considerations in these situations. A number of recent articles discuss these problems and provide a road map for initial review. One such Article recently appeared at on May 26, 2016 entitled “The Second Time Around”. The Article emphasizes that parties should carefully review all of their estate plans, decide on their goals, consider all of the relevant laws that might impact a plan and then implement a complete plan with specific documents such as Wills and Trusts.

I have assisted clients in second marriage situations in regard to estate planning and also Surrogate’s Court Probate and Administration proceedings. If you have any questions regarding these matters, call me now for a free review.

New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Manhattan and Queens and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email:, for an initial consultation.

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