New York Probate Lawyer Blog
Estate planning in New York involves many considerations and decisions. A full understanding and verification of assets is always a good starting point. As discussed in many articles in the New York Probate Lawyer Blog, only assets which are owned by a decedent pass under a Last Will and Testament. In the event a person has assets which are jointly owned with another individual or contain a named beneficiary, these items pass directly to the co-owner or beneficiary by operation of law. In other words, the assets are not controlled by the terms of a Last Will.
Incidentally, in situations where a person dies intestate without a Last Will, all assets owned in the name of the decedent are distributed according to the statutory designated next of kin. At least when a Last Will is created, a person can specifically choose the beneficiaries who are intended to receive estate funds.
Choosing beneficiaries is not always easy depending upon an individuals circumstances. A person preparing an estate plan may want to include or exclude various individuals. In New York, there is no requirement that children be left an inheritance. Some or all children can be entirely disinherited. Of course, in these situations careful planning is needed since a disinherited child may feel that a parent was unduly influenced or lacked testamentary capacity which led to what they believe was unfair treatment. Many times a Will Contest results due to a close family member not receiving the inheritance they have expected.
While a child can be disinherited, a spouse cannot be entirely excluded. In New York, a spouse is entitled to receive a spousal share of an estate which is generally equal to one-third of a decedent’s net estate. This Blog has published many articles examining the spousal right of election. The statutory right and procedure to obtain a marital share is set forth in Estates, Powers and Trusts Law section 5-1.1A entitled “Right of election by surviving spouse.”
One interesting aspect of the spousal election statute is that it gives a surviving spouse an interest in items described as Testamentary Substitutes. These items include assets which do not pass under the probate or intestate estate but are transferred by operation of law. Examples include jointly owned property and other assets which have named beneficiaries. A surviving spouse has a right to claim a marital share of these items despite their separate existence. Thus, a decedent is prevented from avoiding paying an estate share to a spouse by placing all assets in a co-owners name such as a joint bank account.
The marital election statute in New York is very complex. There are very strict time limits provided for in the statute which require that a spouse make an election within a certain period of time. Two (2) years following a decedent’s date of death is typically a cut-off period although the time may sometimes be extended by the Court.
I have represented many individuals in spousal election cases. The assistance of an experienced estate lawyer in these and other Surrogate’s Court cases can be essential. Do you have a question regarding an estate. Call me now for a free confidential review of your estate issue. We provide reasonable and flexible fee arrangements and personal representation.
New York Trusts and Estate 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 Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has a questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.