A decedent may want to leave their spouse with no inheritance for various reasons and may leave them out of their will, or it may happen that they are omitted accidentally. According to New York state law, despite how the decedent may want their estate divided, their spouse will likely be eligible for some inheritance. However, if a family member contests the will, the surviving spouse may not get their inheritance, or if they do, they may not get as much as they expected.
Marital Property vs. Separate Property
New York State defines marital property as any property acquired by either or both spouses during their marriage. Before getting married, a person may have owned their own property or had their own cash savings or investments – this is separate property. The state presumes any property or cash acquired during the marriage to be part of the marital estate, including:
- Real property, with the exception of contributions one spouse may have made toward the real estate with separate funds to pay towards ownership, such as mortgage payments.
- Personal property such as boats, cars, boats, furniture and art.
- Bank and retirement accounts, cash, securities and pensions.
- Permits for engaging in specialized businesses or educational degrees.
- Gifts to each other during the marriage.
Either spouse can exclude a property from the marital assets by entering into a prenuptial or post-nuptial agreement. Without either, the state presumes that what the parties have acquired during the marriage is marital property. There is an exception for personal inherited assets, personal injury/workers' compensation awards and third-party gifts.
Inheritance Rights After a Spouse Dies
When one spouse dies, the other may find themselves left out of the will, either intentionally or by accident. Despite this, the surviving spouse has certain rights under the law to the marital property even if the will doesn't specifically mention them as heirs. For example:
- A person whose spouse dies without a will would have the right to 1/2 of the estate or $50,000 (whichever is greater) if the decedent had children. They could inherit the entire estate if the decedent does not have offspring.
- A person intentionally left out of a will still has the right to 1/3 of their spouse's estate. This is an elective share of the first $50,000, or 1/3 of the estate if the decedent had children, or the first $50,000 or 1/2 of the estate if they did not.
If the decedent did not update their will after marriage, the living spouse, known as the pretermitted spouse, has the right to half the estate. New York law presumes that the decedent meant to include their spouse in the will, but never did. In this instance, the living spouse can inherit $50,000 or 1/2 of the estate if the decedent had children and the entire inheritance if they did not. The remaining spouse also has the right to an automatic "set aside" of up to $56,000. However, should a family member contest the decedent's will, the surviving spouse may see their inheritance diminished or eradicated.
New York Estate Property Division
New York divides estates into one of two categories – those who left wills and those who did not. The decedent who has written a last will and testament will see their wishes carried out as planned. However, even if the spouse wasn't named in their will, the surviving spouse will have a right to a share of their real property. In this instance, the will must go to probate court.
When a person dies without a will, they are said to die "intestate." The state divides their property according to Intestate Succession Law EPTL 4-1.1. Who gets what in a family depends on the living relatives (distributees) and their relationship to the decedent. For example:
- If a person dies with living children but no spouse, the children inherit their estate.
- If they die with a spouse but no children, the spouse inherits their estate.
- If they die with parents but no spouse or descendants, their parents inherit their estate.
- If they die with siblings but no spouse, descendants or parents their siblings inherit their estate.
Intestate Succession and Beneficiaries
Intestate succession laws in New York state only affect the assets of a decedent who doesn't have a will. If someone dies without a will and doesn't have any family, New York will inherit their estate, but this rarely happens as the state tries to get their assets to remaining relatives, even if they aren't immediate.
Surviving beneficiaries can also inherit the decedent's estate without probate by automatic transfer. These assets can include:
- Property transferred to a living trust.
- Proceeds from a life insurance policy.
- IRAs, 401(k)s or other retirement account funds.
- Securities in a transfer-on-death account.
- Bank accounts that are payable on death.
- Property the decedent owned in a joint tenancy agreement or in a tenancy by the entirety agreement.
Spousal Right of Election in New York
A deceased spouse cannot entirely disinherit a surviving spouse per the state's Spousal Right of Election EPTL 5-1.1., law, which states that the surviving spouse can take either $50,000 or 1/3 of the decedent's estate, whichever is greater. The statute of limitations for claiming spousal right of election is six months after the appointment of an estate executor or administrator. The decedent's spouse must contest the will in court to take the election.
Under New York's Spousal Right of Election law, the elective share can include joint bank accounts and other assets, such as "testamentary substitutes" that automatically transfer to the living spouse upon death. Property not under elective share includes proceeds from life insurance policies.
Spouse Disqualified From Right of Election
New York state inheritance laws allow the avoidance of spousal election through post-nuptial or prenuptial agreements, which can contain a clause waiving the election. To show validity, both spouses must understand, agree to and sign the waivers. If a judge finds that either spouse agreed to a post-nuptial or prenuptial agreement without a full understanding of it, they may disregard these agreements and the waivers.
Additionally, EPTL Section 5-1.2 sets out certain situations that also disqualify a surviving spouse, including:
- Valid divorce decree that was in place when the deceased spouse passed away.
- Marriage voided by incest.
- Spouse procured the divorce outside of New York state, and the divorce decree was invalid in New York.
- Parties had a valid final decree or judgment of separation when the deceased spouse passed away.
- Surviving spouse abandoned the decedent, which continued until death.
- Surviving spouse failed to support the other spouse, despite the ability to do so.
Inherited Property, Estate Taxes and Additional Filings
There is no inheritance tax in New York, but the state has a $5.25 million estate tax exemption. If the decedent's estate is larger than that amount, the estate must file a tax return. The state requires this within nine months of death, but it does offer extensions. The highest tax rate an estate can receive is 16 percent. On top of state tax, federal estate tax law requires estates valued at more than $11.4 million to pay taxes within nine months of a person's death – only an estate valued higher than that amount is eligible for an exemption. An estate can get an automatic six-month extension on payments if it asks for it before the due date.
Both federal and state governments require an estate to file a final individual state and a federal income tax return by tax day (April 15) of the year following a person's death. The estate must also file a federal estate/trust income tax return by that date as well.
Divorce and Beneficiary Revocation
New York does not divide property equally between spouses and is not a community property state. A spouse does not automatically receive most or all of the decedent's property following their death. The moment an annulment, separation or divorce occurs, a former spouse is no longer a beneficiary, unless language in the will forbids the revocation. The next listed person becomes the beneficiary.
If a decedent does not list additional beneficiaries, then their assets go through estate administration or probate before being divided among their heirs. A divorce can also revoke other arrangements between spouses, including health care proxy or power of attorney.
Children's Inheritance in New York
Children in New York also receive an intestate share of the decedent's property. The size of their share depends on how many children the individual had and if they had a spouse at the time of death. New York must consider them to legally be the decedent's children. While this may appear straightforward, there are rules for different scenarios. For example:
- Children the decedent legally adopted will receive an intestate share, just as biological children do.
- Foster children and stepchildren that the decedent did not legally adopt do not automatically receive a share of their estate.
- Children an individual put up for adoption who became part of another family through adoption do not receive a share of their estate.
- If the spouse of a decedent adopted the deceased's biological children, it will not affect the children's intestate inheritance.
- Children conceived by the decedent, but not born until after their death, will get a share of the estate if they were in utero within two years of that parent's death or born within three years of their passing.
If the decedent's children were born outside of marriage, and the person who passed was not married to their mother when she gave birth to them, they will receive a share of the estate if both parents signed a paternity acknowledgment and filed it with the birth certificate. The children can also inherit from the estate if the decedent acknowledged paternity or the court determined it.
New York allows children born through artificial insemination to receive an inheritance if the decedent consented to the use of their genetic material after death and within seven years of it. Finally, a decedent's grandchildren can receive an inheritance share if their parent has also passed away and cannot receive their share.
- New York State Senate: Section 4-1.1 Descent and Distribution of a Decedent's Estate
- Find Law: New York Consolidated Laws, Estates, Powers and Trusts Law Section 5-1.1-A Right of Election by Surviving Spouse
- NOLO: Property You Should Not Include in Your Will
- Find Law: New York Consolidated Laws, Estates, Powers and Trusts Law Section 5-1.2 Disqualification as Surviving Spouse
- New York Courts: When There Is No Will
- NOLO: Intestate Succession in New York
- Smart Asset: Inheritance Laws in New York
- Moshes Law, P.C.: Can a Husband Leave His Wife Out of the Will?
- Lois M. Brenner, Esq: What Happens to Your Estate Plan When You Divorce?
Michelle Nati is an associate editor and writer who has reported on legal, criminal and government news for PasadenaNow.com and Complex Media. She holds a B.A. in Communications and English from Niagara University.