In New York, a parent may make a will devising property to children. New York also allows parents to disinherit a child in a will; however, for disinheritance to be effective, a parent must use language that clearly and unequivocally states that purpose. If a parent doesn't make a will, children are entitled to a share of their parent's estate pursuant to state laws. These laws are known as laws of intestate succession, and they provide guidelines as to how property must be divided when a person dies "intestate," or without a will.
Unless spouses enter into a valid prenuptial agreement that waives all rights to inheritance, a surviving spouse is entitled to a portion of her deceased spouse's estate. If a decedent leaves a spouse and children — provided there's no prenuptial agreement — the spouse is entitled to $50,000, plus one-half of estate assets. The remaining one-half of estate assets passes to the decedent's children in equal shares.
Children's Inheritance Shares
According to New York's laws of intestate succession, children are entitled to a parent's entire estate if their parent isn't married at the time of death. Children inherit their parent's estate equally. This means that if there are three surviving children — and no surviving spouse — each child receives one-third of his parent's estate; if there are two surviving children — and no surviving spouse — each child receives one-half of the estate.
In New York, legally adopted children have the same rights as natural children. An adopted child is entitled to receive an inheritance via a last will and testament or through New York's laws of intestate succession if an adoptive parent didn't make a will. An adopted child may also be disinherited in a will, provided the will expressly states the intention to disinherit that child.
Jointly Held Property
In New York, a primary residence purchased by spouses is typically deeded to them as a tenancy by the entirety, which means it's held jointly by both spouses. In a tenancy by the entirety, both spouses share an undivided 100 percent of the property because the married couple is viewed as one legal entity. Thus, when one spouse dies, his share automatically passes to the surviving spouse; this means he cannot leave his share of a tenancy by the entirety to his children in a will.
- The Law Offices of Peter L. Klenk: Frequently Asked Questions
- Agins, Siegel & Reiner, LLP: Departing Shot – How to Disinherit Neatly
- The Free Dictionary: Per Stirpes
- MyStateWill.com: § 4-1.1 Descent and Distribution of a Decedent's Estate
- New York State Legislature: § 4-1.1 Descent and Distribution of a Decedent's Estate
- Child Welfare Information Gateway: Intestate Inheritance Rights for Adopted Persons – Summary of State Laws