Spousal Litigation

Spousal Claims

Under New York law, a decedent cannot completely disinherit a spouse who they were legally married to at the time of their death by intentionally omitting the spouse from the person’s will or trust. The surviving spouse has specific statutory rights under New York law to inherit an “elective” share of the assets of the deceased spouse under such circumstances. In other words, one spouse cannot intentionally disinherit the other spouse under New York law. In order to collect the inheritance, a claim must be brought by the surviving spouse before the New York Surrogate’s Court within six months after the appointment of the personal representative of the decedent’s estate and within two years of the decedent’s death. The Court has the right to extend the filing period if the Court deems it necessary.


So let’s say after the death of your spouse, you discover that your spouse did not leave you any assets. You are grieving, feeling hurt and betrayed and in disbelief that your spouse would omit you in the will. After meeting with NYC estate attorneys, you decide to file a spousal claim against the decedent’s estate with New York Surrogate’s Court asserting your rights under the law to receive your rightful elective share inheritance. Keep in mind that even if there was a pre-nuptial or post-nuptial agreement in place preventing you from legally inheriting any of your deceased spouse’s assets, a good estate litigation lawyer may be able to establish that the agreement was unfair.

This can be accomplished in several different ways such as calling witnesses to testify or producing documents showing the agreement was signed under duress or that despite the existence of the agreement, later documents show that the decedent intended to leave you your rightful inheritance. So there is always the possibility that you may still be able to collect your inheritance or a portion of it.

Since inheritance and spouse claim rights matters are complicated, the majority of the time, the surviving spouse will hire a NY estate litigation attorney for advice and representation. The estate and beneficiaries may also decide to hire their own attorney to fight the spousal claim.

Here is What the Law Says

When there is a will, New York law says that the surviving spouse is entitled to $50,000 or one-third of the estate, or one-half if there are no children, whichever is greater.

So for instance, let’s say that the decedent died owning assets in the decedent’s sole name. The decedent left a will intentionally omitting you, the current spouse, from inheriting any of the decedent’s assets. Instead, the decedent left all his assets to his three children from a prior marriage. Also, there was no pre-nuptial or post-nuptial agreement.

Under these circumstances, it would not be difficult to prove that you, the surviving spouse, have a clear right to claim your elective share under New York law. All you would need to do is have your attorney file the claim against the estate with the New York Surrogate’s Court. The children, who are the beneficiaries, can decide to fight the claim by hiring their own New York estate litigation lawyer, but they would need to establish grounds showing either that the marriage was invalid or that you abandoned their father. Without having sufficient grounds to challenge your claim, there is a pretty good chance that the Court would rule in your favor allowing you to receive your statutory elective share of your deceased husband’s assets.

When the decedent dies intestate (without a will), the New York intestate law says, if there are no surviving children of the decedent, the surviving spouse is entitled to the entire estate. If there are surviving children, then the surviving spouse is entitled to the first $50,000 in assets and one-half of the remainder of the estate. The children would receive the other remaining one-half of the assets divided between them.

Certain assets automatically pass outside the estate and are not subject to probate such as joint bank accounts, property held in joint ownership, life insurance policies, pension accounts, and assets transferred to a trust for the benefit of the decedent’s beneficiaries. These assets are part of the decedent’s augmented estate, and the surviving spouse’s elective share may be based upon a fraction of the value of the augmented estate.

Excluded Property

The surviving spouse may not claim an interest in:

  • The decedent’s separate property acquired prior to marriage or which the decedent received as a gift or by inheritance during the marriage as long as the decedent did not commingle the property with the marital property assets. As an example, if your deceased spouse inherited money from his grandmother’s estate during the time you were married, you are not entitled to make a claim against that asset, unless your deceased spouse deposited the funds into a joint bank account where you also had access to the funds.
  • Gifts made to a third party that the surviving spouse consented to.
  • Property transferred to a third party such as a non-spouse prior to January 1, 1991.

NY Estate Litigation Attorney

There can be many extenuating circumstances and explanations surrounding a person’s decision not to leave their assets to their spouse. For instance, a decedent may have just forgotten to make a will after getting remarried. The decedent’s children from the decedent’s first marriage may have expressed their concerns to the decedent prior to the decedent’s death, and the decedent may have decided to leave all the assets to the children instead, intentionally omitting the spouse from the will.

When disputes arise regarding spousal inheritance claims, the best way to determine the validity of the claim is to hire an estate lawyer in NY to carefully review it and provide legal advice as to the best course of action to be taken. Mike St. Pre, one of the best probate attorneys in New York, represents the estate, personal representatives, heirs, beneficiaries, creditors and other third party claimants in connection with estate litigation matters including will contests, accounting challenges and other routine probate estate and trust matters.