Believe it or not, in the U.S. it isn’t easy to disinherit your spouse. But the same is not true for other family members – generally, you can use your estate plan to disinherit your brothers and sisters, your nieces and nephews, or even your very own children and grandchildren.
However, in the majority of states including New York, you can’t intentionally disinherit your spouse unless your spouse actually agrees to receive nothing from your estate in a Prenuptial or Postnuptial Agreement.
Beware: Spousal Disinheritance Laws Vary Widely From State to State
Unfortunately there isn’t one set of rules that govern what a surviving spouse is entitled to inherit. Instead, the laws governing spousal inheritance rights, referred to as “community property laws” or “elective share laws” depending on the state where you live or own property. These laws vary widely:
- In some states the surviving spouse’s right to inherit is based on how long the couple was married.
- In some states the surviving spouse’s right to inherit is based on whether or not children were born of the marriage.
- In some states the surviving spouse’s right to inherit is based on the value of assets included in the deceased spouse’s probate estate.
- In some states the surviving spouse’s right to inherit is based on an “augmented estate” which includes the deceased spouse’s probate estate and non-probate assets.
For example, in NewYork a surviving spouse has the option to receive a portion of their deceased spouse’s estate called the “elective share.” This share is equal to the greater of $50,000 or 1/3 of the deceased spouse’s “elective estate,” which includes the value of the deceased spouse’s probate estate and certain non-probate assets such as payable on death and transfer on death accounts, joint accounts, the net cash surrender value of life insurance, property held in a revocable living trust, and annuities and other types of retirement accounts, reduced by the deceased spouse’s debts (this is an example of the last category described above).
Aside from this, state laws also vary widely regarding the time limit a surviving spouse has to seek their inheritance rights, which can range anywhere from a few months to a few years. In New York, The right of election must be asserted by the surviving spouse within six months from the date a will is probated or if there is no will, when an administrator is appointed. In addition, the right of election cannot be asserted more than two years after the date of death.
Disinherited Spouses Need to Act Quickly!
If your spouse has attempted to disinherit you, you must seek legal advice as soon as possible before state law bars you from enforcing your rights. Only an experienced estate planning attorney can help you weigh all of your options and protect your interests as a surviving spouse