New York Spouses Can Lose Their Inheritance Rights Due to Abandonment

The settlement of a New York estate requires the identification of the decedent’s distributees (i.e, next of kin). In both probate proceedings and intestate administration proceedings the Court filings require that the names and addresses of all distributees be provided. This mandate allows the Court to identify all persons who are interested in the estate and to make certain that all of these persons have received proper notice of the Court proceedings. For example, in probate proceedings, the distributees may want to contest the Will by filing Objections. The spouse of a decedent typically has a priority of rights as a person interested in an estate. The New York Probate Lawyer Blog has posted many articles discussing the rights of spouses and other distributees to inherit from an estate. Sometimes a spouse may lose the rights of inheritance. Estates, Powers and Trusts Law Section 5-1.2 entitled Disqualification as surviving spouse sets forth a number of situations in which a surviving spouse may be disqualified from inheriting. For instance, section (a)(1) of the statute states that a final divorce would result in a disqualification. Another provision of the statute, which has been the source of many disputes, disqualifies a spouse if the spouse abandoned the decedent. This is set forth in section (a)(5). The abandonment has to continue until the death of the decedent. Also, the abandonment must be unjustified, meaning that the separation of the surviving spouse must have occurred without the consent or approval of the spouse who has died. Additionally, there is no time frame regarding the abandonment. If the parties separated many years prior to death but had agreed to live apart, the surviving spouse would be entitled to inherit despite the long period of separation.

As can be seen, the determination of issues regarding abandonment and justification can be difficult to determine especially since one of the spouses, i.e, the decedent, is no longer alive to provide information regarding the status of the parties relationship.

I have represented many individuals in probate and intestate administration cases involving the determination of estate distributees and kinship issues.  These cases included the determination of the status of the surviving spouse.

A recent case decided by Brooklyn Surrogate’s Court Judge Margarita Lopez Torres on August 1, 2016 provides an example of the issue presented in abandonment cases. In Estate of Zolli, an interested party asked the Court to find that a surviving spouse was disqualified from inheriting based upon the abandonment of the decedent. The Court refused to dismiss the spouse’s claim for a share of the estate. The Court determined that there were issues of fact regarding whether or not the spouse was justified in leaving the marital home. Therefore, a hearing was needed to determine whether an abandonment had occurred.

If you have any questions or issues regarding estate settlement or the rights of persons such as a spouse to inherit a share of an estate, call me now for a free discussion.

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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