New York Probate Lawyer Blog
The surviving spouse of a decedent is afforded numerous post-death rights. At the most basic level, where the decedent did not have a Last Will and Testament, pursuant to Estates Powers and Trusts Law Section 4-1.1, the surviving spouse is entitled to be paid the entire intestate estate or at least the first $50,000.00 of the intestate estate along with fifty percent (50%) of any sums in excess of such amount when there are surviving children.
In some cases, a decedent’s assets consist of items that are part of either an intestate or testate estate (administration or probate). These items are owned by the decedent in his name alone. However, a part of the estate may pass directly to named beneficiaries or joint owners. These items do not pass through the portion of the estate controlled by the estate executor or administrator.
In order to protect a spouse’s post-death interest, Estates, Powers and Trusts Law Section 5-1.1-A, entitled “Right of election by surviving spouse,” gives the spouse a right to receive at least one-third of a decedent’s net estate. This statute prevents one spouse from disinheriting the other by leaving all of his assets directly to a third party through beneficiary designations or similar transfers. The New York Probate Lawyer Blog has reviewed this statute in numerous articles.
The difficulties encountered in these spousal rights cases were displayed recently in a Manhattan estate case decided by Manhattan Surrogate Rita Mella on October 14, 2020. In Matter of Estate of Montalbano, the decedent completely disinherited her spouse in her Will which was admitted to probate. Some assets did pass directly to the spouse. As appears from the case decision, the surviving spouse had instituted a compulsory accounting proceeding to force the executor to file an accounting with the Court. Surrogate’s Court Procedure Act Section 2205 entitled “Compulsory account and related relief on a court’s own initiative or on petition; who may petition,” provides the procedure to compel a fiduciary to file an accounting.
After the accounting was filed, the spouse filed a number of objections to the account. The Court reviewed all of the objections and found that none of them had any merit. It was the objectant’s basic claim that the Court should ignore the beneficiary designations on the non-probate assets and that the spouse had some ownership interest in the assets. For example, the Court determined that there was no evidence either that the objectant made any monetary contributions toward the assets or that the executor should be estopped from claiming that the spouse had no ownership interest. The Court also noted that the marital divorce principals of equitable distribution did not apply after a decedent’s death.
Determining spousal rights as well as other types of kinship claims can be difficult and require extensive estate litigation in the Surrogate’s Court. These issues may complicate both probate and intestate estate settlement. Call Me Now for a free confidential review of your estate issue. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.