In New York, as elsewhere, marriage gives spouses certain indelible rights when their partner dies. These inheritance laws typically override any estate planning that spouses might make that contradicts the statutes. If you try to disinherit your spouse in New York, it won't work. If you deliberately leave her out of your will, or leave her only a small token amount, New York law will give her a portion of your estate anyway.
Elective Share Laws
If you write your spouse out of your will in New York, she can elect against it. A surviving spouse can waive acceptance of whatever her partner's will leaves her -- or doesn't leave her -- and instead take up to half the estate after payment of the decedent's debts, taxes and other expenses have been made. She can get half the estate if her husband left no surviving children. If he did leave children, she can accept a third of the estate and the balance goes to them. If the one-third portion is less than $50,000, the surviving spouse can take $50,000 instead. Spouses have six months to notify the court they want to elect against the will.
Dying Without a Will
New York law also protects spouses when their partners die without leaving a will. If a decedent has no children, his surviving spouse automatically inherits his entire estate. Otherwise, she receives $50,000 after payment of taxes, debts and expenses, plus half of anything left over, and his children share the remaining half. If a decedent's children died before him, but he has grandchildren, the same rule applies. The grandchildren would inherit their parents' portions.
Other Inheritance Rights
Spouses also have inheritance rights in New York outside of the probate process. Certain assets are not included in probate -- passing directly to the spouse. These include up to $11,000 of various household items and personal effects, $15,000 in cash or personal property and $10,000 of the value of an automobile. This law applies regardless of whether the decedent left a will.
Effect of Divorce
The law protects spouses against disinheritance only until they take steps to end their marriage. Divorce terminates all inheritance rights and so does a signed separation agreement. Unless the decedent specifically states in his will he wants his former spouse to inherit or execute his estate regardless of their divorce, a divorce decree overrides anything he leaves her in his will and she cannot act as executor of his estate. Divorce ends a spouse's right to an elective share.
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.