Articles Posted in Spousal Rights

The settlement of a New York estate occurs in a number of different contexts.  If a Decedent dies and leaves a Last Will and Testament then the probate process begins to have the Will admitted to probate.  A petition for probate is filed with the Surrogate’s Court along with the necessary supporting papers.  In the event a Decedent dies intestate without a Will, then an Administration proceeding must be commenced to obtain the appointment of an Administrator and the issuance of Letters of Administration.

In all of the above situations, if a Decedent is survived by a spouse, an immediate question arises as to the nature and value of the interest which is to be distributed to a surviving spouse.  In the case of a Will, the document must be examined to see what provisions have been made for the spouse.  Where there is an intestacy, Estates, Powers & Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse is entitled to receive the first $50,000.00 plus one-half of the balance of the estate.

The determination of spousal rights gets very complicated by the fact that pursuant to EPTL 5-1. 1A entitled “Right of election by surviving spouse” a surviving spouse is guaranteed to receive at least one-third (1/3) of a Decedent’s net estate.  To complicate matters even more, the calculation of the spousal right of election includes assets which are called Testamentary Substitutes.  These assets include items such as joint assets and assets which pass outside of the probate and administration estates to third party beneficiaries.  As can be imagined, the determination of all of these assets and the calculation of the overall spousal share can be filled with complexity.  For example, it may be that the provisions for a spouse under a Will are less than what a spouse would receive by asserting her claim to a spousal election.  In such a case the election can be used to increase the amount of assets to be received by the spouse.

A very common aspect in New York estate settlement and estate litigation concerns the rights of a surviving spouse.  The New York Probate Lawyer Blog has published numerous posts concerning spousal rights and decedent’s estates.

Estate lawyers in New York are aware that state statutes such as the Estates, Powers and Trusts Laws (EPTL) and the Surrogate’s Court Procedure Act (SCPA) provide a surviving spouse with certain preferential rights.  For instance, if a person dies intestate without a Last Will and Testament, EPTL Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse receives the first $50,000.00 of the estate and fifty percent (50%) of the balance of the estate to be distributed.  Also, if a decedent leaves a Last Will but fails to provide for a spouse, EPTL Section 5-1.1-A entitled “Right of election by surviving spouse” allows a disinherited spouse to elect to receive one-third (1/3) of the estate.  This election includes assets defined as testamentary substitutes which include items such as joint assets.

Spousal rights are provided in other areas such as estate tax.  For both New York and Federal estate tax, generally, all assets left to a surviving spouse are subject to a full marital deduction and not subject to estate taxation.

There are many different rights which appear in the New York Trust and Estate laws.  The basic statutes concerning estate law and procedure are contained in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

A surviving spouse of a decedent benefits from a number of provisions in the estate laws.  For example, if a person dies intestate (without a Last Will and Testament), EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate,” provides that a surviving spouse is entitled to receive, essentially, one-half of a decedent’s estate if there are also surviving children.  In the event no children are surviving, then the spouse has top priority and inherits the decedent’s entire estate.

SCPA 1001 entitled “Order of priority for granting letters of administration,” is another provision where a spouse has priority benefits.  This statute provides that a spouse is to be appointed as the administrator of an intestate estate before any other heir.  The New York Probate Lawyer Blog contains many articles discussing executors and administrators and estate settlement.

An interesting aspect of New York estate law and practice is its intersection with other areas of law.  For example, the New York Probate Lawyer Blog contains numerous articles discussing issues concerning the appointment of a guardian for personal needs and property management under Article 81 of the Mental Hygiene Law.  In many cases, a decedent, due to advanced age or disability, may have been the subject of a guardianship proceeding prior to death.  Such proceeding may have dealt with issues regarding a decedent’s capacity or assets which may be directly related to post-death matters concerning the validity of a Last Will and Testament or pre-death transfers of property.

Similarly, prior to death, a decedent may have been involved in a divorce or other matrimonial action which may have been litigated and/or settled.  Issues and factual matters may have been raised in such cases which could impact upon Surrogate’s Court proceedings and the settlement of a decedent’s estate.  As a threshold matter, a divorce would sever and terminate most spousal and inheritance rights between the parties.  Also, matrimonial litigation might disclose the nature and value of assets which may be a part of a decedent’s estate.  These facts might impact both probate proceedings and intestate administration proceedings.

An example of the impact a pending divorce might have on estate administration was recently shown in a Bronx estate case entitled Estate of Wood decided by Bronx Surrogate Nelida Malave-Gozalez on February 3, 2023.  In Wood, the decedent and his spouse had entered into a stipulation of settlement with regard to a pending divorce action.  The stipulation was fully executed.  However, before a judgment of divorce was entered in the divorce action, the decedent died.  One of the primary issues which was presented to the Court was whether the terms of the stipulation were enforceable notwithstanding the death of the decedent.  This was an issue because the basic rule is that the death of a party abates a divorce action unless the entry of the judgment was only a ministerial act to be completed by the Court.