Most people who take the time and effort to create an estate plan believe they can do as they wish with their assets as a final disposition upon their passing. On the contrary, however, Hartsdale last will and testament lawyers know that certain individuals, by the nature of their relationship with the decedent, may have a right of inheritance no matter what the terms of the will indicate.
Spousal Right of Election
Under New York state law, a spouse is entitled to an elective share of the assets of their deceased spouse if that which the decedent actually left is less. This share is defined as the greater of $50,000 or one-third of the estate. Important considerations Hartsdale last will and testament lawyers can explain include:
- The spousal right of election must be asserted in court within six months of the issuance of letters testamentary or if no such letters were issued within two years of the decedent’s passing
- The estate of the decedent includes probate assets as well as what are considered “testamentary substitutes,” which protects the surviving spouse in circumstances where the decedent employed probate avoiding techniques
- Exceptions may apply, typically in cases where the surviving spouse abandoned the deceased spouse during his or her lifetime or where a waiver of the right was made in a valid prenuptial or post-nuptial agreement.
It is highly recommended that an individual review and consider amending his or her will on a regular basis but most certainly after a major life event such as a divorce. To the extent an ex-spouse does inherit under a will, there is no spousal right of election if the divorce was final before the decedent’s passing.
The general rule in New York is that a child has no legal right of inheritance from a parent. However, when a person dies without a will, known as intestacy, a child may be entitled to a certain percentage of the estate depending on whether or not the decedent left a surviving spouse and the existence and number of other children. Additionally, there are protections afforded for what is deemed an “omitted child.” An omitted child is entitled to that share he or she would have received if the parent died intestate. In most circumstances, to qualify as an omitted child, the child must have been born or adopted after the execution of the last will and testament, and that will must not expressly disinherit that child.
Contact Hartsdale Last Will and Testament Lawyers for Legal Advice
Determining precisely the manner in which you choose to distribute your estate upon your passing requires thoughtful planning. For any questions on the best way to execute your plan, call Rogers & Rogers, Esq. at (718) 994-1640.