It Is Important To Know That A Spouse’s Right of Election Can Be Denied By A Court

The rights of a surviving spouse have been safeguarded in various provisions of the New York Estate Law. For example, when a person dies without a Last Will his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that the intestate share of a surviving spouse takes priority even where there are surviving children. A surviving spouse receives the first $50,000.00 of the estate plus one-half of the balance.

The New York Probate Lawyer Blog has published many articles relating to the various rights that family members have when a person dies without a Last Will. The intestate administration of a decedent’s estate can be quite complicated especially when issues of kinship exist.The Blog has also discussed the Spousal Right of Election on many occasions. This right, which is exercised by filing a Notice of Election, comes into play when a surviving spouse is either left out of a Last Will or is not named as a beneficiary of assets that pass directly to beneficiaries. One common example of this later occurrence is when a surviving spouse has not been named as a beneficiary of a New York City Employee’s Retirement System (“NYCERS”) death benefit. I have represented numerous surviving spouses in NYCERS cases.

It is important to know that the Right of Election is not absolute. The Spousal Right can be lost due to a number of circumstances. EPTL 5-1.2 entitled “Disqualification as Surviving Spouse” provides in paragraph (a)(5) that a person will not be afforded spousal rights if they abandon the deceased spouse.

In a recent Brooklyn Estate case entitled Matter of Estate of Berk, decided on June 27, 2018, Brooklyn Surrogate John Ingram denied a Right of Election regarding a decedent’s Last Will. The facts involved a marriage that took place between the decedent who was 99 years old and his 48 year old caretaker. After a trial the Court determined that the decedent did not have the capacity to understand or consent to the marriage. It was also found that the marriage was the result of undue influence. Therefore, the Surrogate denied the spouse’s petition to approve her election.

I have represented many individuals in Right of Election cases. Call me now for a free review regarding Spousal Rights and estate administration.  New York Probate Attorney Jules Haas has helped many clients over the past 30 years resolve issues relating to intestate estates and estate settlement. If you or someone you know is in need of assistance regarding a New York Estate matter or have any questions regarding such proceedings, please contact me at (212) 355-2575.

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