Spousal Claim Against a New York Estate
It is Extremely Difficult to Disinherit a
Spouses of the deceased have strong inheritance
rights under New York law. If the decedent died
without a will (intestate), a spouse has the
right to fifty thousand dollars and one-half of
the residue of the estate. Even if there is a
will disinheriting the spouse, a spouse still
has a limited time to claim the "elective share"
of the greater of fifty thousand dollars or
one-third of the estate (up to one-half of the
estate if the couple has no children).
New York’s Right of Election Law is what
protects spouses from being disinherited. An
“elective share” claim, in the amount of either
$50,000 or one-third of the estate, is almost
always successful. A spouse has six (6) months
from the appointment of an executor or an
administrator of an estate to file a right of
election, and the filing has to take place
within two (2) years of the decedent's death.
A prenuptial agreement may restrict a spouse’s
ability to claim a right of election. On the
flip side, there are many ways to declare a
prenuptial agreement to be invalid. There are
also other ways to fight an elective share
claim, such as questioning the validity of a
marriage or proving the spouse's abandonment of
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