When a person dies intestate (without a Last Will), his estate is distributed according to the laws of intestacy. New York estate lawyers know that Estates, Powers and Trusts Law Section 4-1.1 provides the list of relatives who have priority to receive a share of the decedent’s estate. Many articles appear in the New York Probate Lawyer Blog discussing intestate inheritance issues.
At the top of the list of those entitled to inherit pursuant to EPTL 4-1.1 is a decedent’s spouse and children. However, there are circumstances where a spouse’s right might be extinguished through disqualification. Some of these situations have been discussed in earlier posts. EPTL 5-1.2 is entitled “Disqualification as surviving spouse”. Under this section a spouse may be disqualified to received a share in a number of circumstances such as intestacy and asserting a right to elect against a Will.Disqualification may occur if there is a final judgment of divorce or if the marriage was void. One of the more litigated parts of the statute relates to the disqualification of a spouse if the spouse abandoned the decedent during life. The estates statutes do not define abandonment and guidance as to the factors constituting abandonment must be obtained from the divorce laws. Essentially, abandonment occurs when a spouse had unjustifiably separated from the decedent and without the decedent’s consent and the abandonment continued through the time of death.
As can be imagined, the variety of relationships between marital parties can give rise to estate litigation in the Surrogate’s Court concerning the right of a spouse to assert rights to inherit. Recently, a very interesting case was decided by Brooklyn Surrogate Margarita Lopez Torres on February 11, 2015 entitled Matter of Atta. In Atta the decedent’s estate was to receive a portion of a personal injury settlement. The decedent’s oldest daughter was appointed as administrator and asked the Court to disqualify the decedent’s spouse and prevent him from receiving an estate share. The daughter claimed, and the Court agreed, that the spouse abandoned the decedent due to his leaving the family home and his criminal assault on the decedent’s two young daughters. The Court found such conduct showed his unjustified departure from the home and that the decedent did not consent to such conduct.
I have represented many clients in Brooklyn Surrogate’s Court regarding various issues involving probate, kinship, administration and accounting matters. It is always necessary to have guidance regarding the qualification and status of family members so that estate matters and estate distribution can be properly accomplished. Feel free to call me if you have any questions that are of concern.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.
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