New York Marital Inheritance Rights Can Be Waived

The rights of a surviving spouse to inherit from a decedent have been referred to in numerous articles in the New York Probate Lawyer Blog. When a person dies without a Last Will, a surviving spouse is provided by Estates, Powers and Trusts Law (EPTL) Section 4-1.1 with at least a fifty percent (50%) share of the estate. When a decedent leaves a Last Will, the general rule is that a surviving spouse cannot be entirely disinherited. EPTL 5-1.1-A entitled “Right of Election of Surviving Spouse” provides that a spouse is to obtain a share of assets equal to approximately one-third of a decedent’s net estate. Thus, if a spouse is omitted from a Will or disinherited in whole or part, the spouse can elect to receive estate assets equal at least to the statutorily required minimum.

It should be noted that inheritance by a spouse is given this protection while other family members do not receive these rights. Even children can be entirely disinherited. Also, the estate tax laws recognize the importance of spousal transfers. The Federal and New York estate tax rules allow a 100% marital deduction for all assets passing from a decedent to a spouse.In some situations, however, a spouse may voluntarily waive the right to receive a share of an estate. EPTL 5-1.1-A(e) entitled “Waiver or release of right of election” provides the manner in which a spouse can forego a right to take a share of a decedent’s estate. Essentially, the statute states that the waiver must be in writing, and signed and acknowledged by a notary public. The statute also sets forth that the waiver can be done either before or after the parties are married.

The typical documents that may contain a waiver of spousal inheritance rights would be pre-nuptial agreements or post-nuptial agreements. Such agreements do not need to be done in connection with divorce proceedings although in many instances a post-nuptial agreement will take place as part of the divorce process.

It is always important for spouses to understand the rights and obligations that exist between themselves. This is particularly relevant in situations such as second marriages when a spouse wants to insure that children from a prior marriage will receive a certain share of an estate. Similarly, second spouses want to understand their inheritance rights so as not to be potentially excluded from estate inheritance due to oversight and thus be required to assert a right of election. This may happen where estate planning documents such as a Last Will, Living Trust and other papers have not been updated.

Spousal inheritance rights are very often the source of estate litigation in Surrogate’s Court. In a recent case decided by Brooklyn Surrogate Margarita Lopez Torres on March 4, 2015 entitled Matter of Mason, the surviving spouse of the decedent challenged the validity of a post-nuptial agreement she had signed with the decedent. After a review of the law and the agreement the Court found that the waiver was valid and dismissed the challenge.

If you have any questions regarding the validity of estate rights of a surviving spouse or other beneficiary call me for a free evaluation. I have represented clients in Surrogate’s Court matters throughout New York State.

New York Probate and Administration Attorney Jules Martin Haas, Esq. has been representing clients in New York Trusts and Estates matters in Manhattan and Queens Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Probate or intestate estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

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