John George, a man from the 18th century, devised a will with the intention of excluding his wife, Elizabeth, from what would have normally been a substantial estate. In a rather unconventional move, he left her a mere token of one shilling:
“Given that I’ve had the unfortunate circumstance of being married to the aforementioned Elizabeth, who, since our union, has made my life a living hell; she has dedicated herself to making my existence unbearable. It seems as though fate sent her into this world solely to drive me out of it. Considering the strength of Samson, the brilliance of Homer, the wisdom of Augustus, the cunning of Pyrrhus, the patience of Job, the philosophy of Socrates, and the craftiness of Hannibal wouldn’t suffice to tame her stubbornness…after pondering these matters seriously…I hereby bequeath the sum of one shilling to my dear wife, Elizabeth.”
Can You Legally Exclude Your Spouse from Inheritance?
The answer is a straightforward “no.” In present times, particularly in New York, it is not possible to completely exclude your spouse from inheriting your estate. Every surviving spouse is entitled to a spousal elective share, typically understood to be one-third of the deceased individual’s estate (though the calculation is more complex). For individuals who pass away after September 1, 1992, the surviving spouse is entitled to whichever is greater:
- $50,000 (or less if the estate is valued below $50,000)
- One-third of the deceased person’s net estate
The crucial phrase here is “net estate,” which encompasses all assets bequeathed by the deceased person’s last will, all assets considered testamentary substitutes (such as jointly-held bank accounts, beneficiary accounts, or jointly-owned real estate), and all assets passing to the deceased person’s heirs, which are then subject to various deductions and reductions. Essentially, this means that after totaling the value of all the deceased person’s assets, the surviving spouse is entitled to one-third of the overall value. In other words, the smallest share a surviving spouse can receive is one-third of the value of all the assets owned by the deceased person at the time of death.
Understanding the distinction between the probate estate and the gross estate might be slightly confusing, but an estate attorney can provide guidance on this matter. For now, let’s illustrate with an example: let’s suppose that John George, the man from our story, died as a resident of Manhattan and left his wife, Elizabeth, with a $100,000 inheritance in his will. Additionally, John had a life insurance policy worth $500,000, naming his son, Phillip, as the sole beneficiary. John also jointly owned an apartment in Brooklyn with Phillip, which the executor of John’s will sold for $600,000. Lastly, John possessed an Individual Retirement Account valued at $250,000, also naming Phillip as the sole beneficiary, and a savings account with $50,000.
With the exception of the savings account, all the assets mentioned above are non-probate assets, meaning they automatically pass to the designated beneficiary outside of the estate. However, wait—John left his wife $100,000, and the only asset in the estate is the savings account containing $50,000. Moreover, it was previously stated that the surviving spouse is entitled to one-third of the gross estate. How does this situation work then?
In practice, the surviving spouse would typically hire a probate lawyer to calculate the elective share and complete the necessary paperwork for the Surrogate’s Court, which may involve estate litigation. But let’s work through Elizabeth’s hypothetical situation right here. First, let’s sum up the deceased person’s gross estate:
- Life Insurance: $500,000
- Brooklyn Apartment: $600,000
- IRA: $250,000
- Savings Account: $50,000
- Total: $1,400,000
Next, we divide the total by three. Since John’s gross estate amounts to $1.4 million, his surviving spouse is entitled to one-third of that figure, which means Elizabeth would receive $466,666.67 — a significantly larger sum than the $100,000 John left her in his last will and testament.
Despite the provisions stated in John’s will, Elizabeth cannot be completely disinherited because, according to the law, surviving spouses are entitled to receive at least one-third of the deceased person’s gross estate. Sometimes, estate executors do the right thing, but on other occasions, they may intentionally or unintentionally exclude a surviving spouse. This is precisely why it is crucial to have a knowledgeable probate attorney from New York representing you as the executor. Conversely, if you find yourself in Elizabeth’s position, seeking an experienced estate lawyer to safeguard your interests as the surviving spouse is paramount in order to secure your rightful inheritance dictated by the law.
Exceptions do exist, such as informed consent, which serves as a significant exemption to the spousal elective share. If the surviving spouse is fully aware of the extent of their partner’s estate and provides written consent to receive less than the one-third spousal elective share, then, upon the partner’s death, the surviving spouse would not be entitled to the elective share.
Need Help with Probate or Estate Litigation in the New York Metro Area?
If a loved one has passed away without leaving a will, and you require legal assistance in navigating the probate process or find yourself involved in estate litigation, it is crucial to speak with an experienced probate attorney as soon as possible. Contact Garrity Traina online or call our dedicated New York City office directly at 212.227.2424 to schedule your free consultation. We proudly represent clients throughout New York and northern New Jersey, serving Brooklyn, Manhattan, Queens, Staten Island, The Bronx, Nassau County, and Westchester County.