New York Probate Lawyer Blog
There are numerous marital rights and issues which may arise in Estate and Trust cases in New York. These matters span a broad range of topics which include probate proceedings and intestate administration proceedings. The New York Probate Lawyer Blog has published many articles concerning spousal matters. This blog will discuss facts relating to some of these matters.
Probate Proceedings: The probate of a Last Will and Testament in Surrogate’s Court directly affects the interests of a surviving spouse in a number of ways. To begin with, probate cases require that official notice be given to a decedent’s next of kin which includes a living husband or wife. As an essential party of interest, the spouse would generally have the right to contest a Will if he or she would benefit monetarily. Not only might there be a Will Contest, a surviving spouse is afforded a spousal right of election pursuant to Estates, Powers and Trusts Law section 5-1.1-A entitled “Right of election by surviving spouse”. This estate statute allows the wife or husband to elect to receive the benefits under a Will or receive a statutory share essentially equal to one-third of a decedent’s net estate. The calculation of an elective share can be quite complicated since it includes assets which are transferred outside of the probate estate like joint assets which are referred to as testamentary substitutes. The statute provides a formal procedure whereby a Notice of Right of Election is filed with the Surrogate’s Court and a copy is sent to an estate Executor or Administrator. While there is no legal requirement to give a spouse any bequest in a Will, the Right of Election provides protection so that a spouse cannot be entirely disinherited. If a third-party is named as a beneficiary on separate assets such as a NYCERS retirement account, a spouse may have a right to receive a share of such asset.
Intestate Administration Proceedings: Where a decedent dies without a Will, a spouse would also have a Right of Election to receive a share of a decedent’s estate. This right is separate from a surviving spouse’s right to receive an intestate estate share. Sometimes the intestate estate does not include assets such as joint accounts and other assets which pass directly to named beneficiaries. The spouse can claim a portion of these items.
Also, a surviving spouse is entitled to receive the first $50,000.00 or one-half of a decedent’s intestate estate. As to the appointment of an estate Administrator, the husband or wife has first priority to receive such appointment.
Tax Benefits: Under the current New York State and Federal estate tax laws a spouse has special benefits. Essentially, all assets which are passed on to a surviving spouse are not subject to estate tax. This unlimited marital deduction can be very beneficial to a survivor.
Disqualification as a Surviving Spouse: There are also provisions in the EPTL which allow for a surviving spouse’s disqualification to inherit. These provisions are in EPTL section 5-1.2 entitled “Disqualification as Surviving Spouse”. Among other items, disqualification would occur in the event of a judgment of divorce or even proof of abandonment or failure to support a decedent.
As can be seen, estate law in New York is complicated and the rights of spouses and others may require the assistance of an experienced Estate Lawyer. I have been representing clients in estate cases for over 40 years. Do you have a question regarding an estate or Surrogate’s Court case or inheritance? Call me now for a free confidential review. 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 some one you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.