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Can a Husband Leave His Wife Out of the Will?

Founding Member of Moshes Law, P.C.
During his years of practice, Yuriy has concentrated in litigation and real estate transactions as his areas of expertise.

Unlike some states in which the will dictates how a person’s estate is to be distributed, in New York, a spouse, even if they are specifically left out of their partner’s will, does not mean that they are absolutely left without anything and do not receive any money or house. This means that if a spouse leaves the other spouse out of the will, and for example, the departing spouse left their house, the surviving spouse, even though they are out of the will, may still be entitled to the proceeds of the house.

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    This article shall address certain aspects of New York inheritance law when it comes to wills and real estate, answer the question of can husband leave wife out of will so that the wife gets no real estate whatsoever, and examine the importance of consulting an experienced New York real estate attorney who can advise how to inherit the real property and then help you sell it.

    New York Inheritance Law

    When it comes to buying, selling, and receiving real estate that is part of a will in the State of New York, you may be surprised that just because the decedent, or the deceased spouse’s estate, may want their estate to be divided a certain way, that does not necessarily mean that it will happen in the eyes of New York inheritance law. Despite wanting to disinherit your spouse, there are several general issues that everybody needs to consider when it comes to New York inheritance law and real estate

    What is Marital Property in NY?

    For martial purposes only, marital property is all property acquired by both or either spouses during their marriage. This timeframe is prior to the commencement of any matrimonial action, such as actual marriage, and before any execution of any separation agreement. Accordingly, anything that is non-marital property is considered separate property. This means that if a house was purchased by the two spouses before they were married, that property is considered non-marital property and the spouses are tenants in common. However, if the property was purchased at some point while the spouses were actually married together, then that house is considered marital property.

    Does New York Have an Inheritance Tax or Estate Tax?

    An inheritance tax is exactly what it sounds like. It’s when the state taxes you for whatever amount you inherit. Luckily, New York does not have an inheritance tax. But that doesn’t mean, however, that if you are given some sort of inheritance, you are going to walk away scott free.

    can husband leave wife out of will

    Although New York does not have an inheritance tax, New York does prescribe to an estate tax, which comes directly out of an estate before it’s divided and distributed. Specifically, the tax is taken out of the deceased’s assets before they’re dispensed out to the beneficiaries. Accordingly, if the estate’s total value exceeds the state $5.25 million estate tax exemption, meaning if the decedent’s estate exceeds that amount, the estate is then required to file a New York estate tax return within nine months of the deceased’s death; however, extensions are available. The max estate tax rate you could possibly receive is 16%.

    Spousal Rights After Death

    Spousal rights are not based on how long the spouses were married.
    As the spouse, whether or not you are left out of the will intentionally or accidentally, you are entitled to certain rights, which means that if the departing spouse leaves with real property, the other spouse may still be entitled to the proceeds of that real property, even if they are not specifically listed in the will.

    • If your spouse died without a will, you have the right to $50,000 or 1/2 of the estate if the decedent had children, or the right to the entire inheritance if the decedent did not.
    • If your spouse intentionally left you out of the will, then you have the right to one-third of their estate. If your spouse left a will cutting you out, you have a right to an “elective share” of the first $50,000 or 1/3 of an estate if the person who died had children, or the first $50,000 or ½ of the estate if the person who died did not have children
    • If your spouse died without updating their will after getting married to you, then you have the right to at least half of their estate. In cases like this, the surviving spouse is called “the pretermitted spouse” due to the fact that the law presumes that the deceased spouse meant to include them in the will but just forgot to do so. The surviving spouse has a right to an inheritance of $50,000 or 1/2 of the estate if the person who died had children, and the right to the entire inheritance if the person who died did not have children.
    • Right to an automatic “spousal set aside” of up to $56,000
    • Should they contest the will, the surviving spouse’s share may be diminished or be eradicated completely.

    In order to maximize your benefits and be aware of your rights, an experienced inheritance real estate attorney should be consulted.

    Child Inheritance Laws in New York

    New York has some very unique inheritance laws. In order for there to be any inheritance between children and their parents, New York State requires that there is a legal parent-child relationship. Adopted children will inherit just like a biological child. However, foster children and stepchildren will not inherit unless they were legally adopted. If a child has any questions regarding their inheritance, an experienced inheritance real estate attorney should be consulted.

    How Estate Property is Categorized in New York Inheritance Law

    In New York, estate property is generally divided into two categories when it comes to New York Inheritance Law: those with wills and those without wills.

    Dying With a Will in New York

    If a person dies with a will in New York, then the real estate is divided exactly as the decedent specified they should be, with the exception of the spouse and if the spouse was not listed in the will. In those cases, the spouse may be entitled to a share of real property, even if they are not listed in the will. In every case where there is a will and real property in the estate, the testate will must be submitted to the court for probate.

    Dying Without a Will in New York

    If there is no will, then the real estate is owned depending on how the title to the property was taken initially by the couple. If title taken as tenants in common, then they each own a 50% share. However, if title as husband and wife then they each own a 100% share of the real estate.

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      In either case, an experienced inheritance real estate attorney should be consulted to further expand upon your rights and what you are entitled to.

      The Right of Election Under Eptl §5-1.1(A) and the NY Estate Law

      New York’s Spousal Right of Election protects a surviving spouse from being completely disinherited from the estate of the deceased spouse and is one of the main tools used by inheritance real estate attorneys.. Under EPTL 5-1.1A, a surviving spouse is entitled to take the larger of $50,000 or one-third (1/3) of the deceased spouse’s net estate.

      How Does a Spouse Take this Election?

      When it comes to New York inheritance law, the statute of limitations for filing a spousal right of election is six months after an executor or administrator of an estate has been appointed. In order to take this election, the spouse must contest the will by filing a contestation in court.

      What Property is Subject to the Election?

      Under New York’s Spousal Right of Election, a spouse is entitled to an “elective share” of the assets which is defined as the greater of $50,000.00 or one-third of the estate which includes property such as joint bank accounts and certain assets which are known as “testamentary substitutes.” Testamentary substitutes are assets that do not go through the probate process; transferring automatically upon death. Examples of testamentary substitutes include jointly owned property; joint bank accounts; transfer on death (TOD) designations; payable on death (POD) accounts; assets held in living trusts; and retirement account beneficiary designations (IRA’s, 401k, 403b).

      What Property is Not Subject to the Election?

      Under New York’s state law of its elective share laws, life insurance proceeds are not included in the net estate for elective share purposes.

      When is a Spouse Disqualified from Making this Election?

      Under EPTL 5-1.1A of New York state inheritance laws, the spousal election can be avoided with a pre or post-nuptial agreement, which often contains a clause waiving the Right of Election. In order for the waiver of a Right of Election to be valid, however, the waivers must have been understood, agreed to, and signed. Accordingly, if a judge finds that either party entered into the agreement without a full understanding of the agreement, it may disregard the agreement in full, which would include the waiver of the Right of Election. In addition, a spouse who has been determined to have “abandoned” the deceased spouse is disqualified from making the election. Once the surviving spouse receives the property, it is important that they hire a real estate planning lawyer to help sell the properties.

      new york state inheritance laws

      Real-Life Examples

      The easiest real-life example is when the Husband completely disinherits the Wife and she is left out of a will in favor of the children. Rather than the Wife get nothing, including the house and real estate, the Wife hires an experienced inheritance real estate attorney, who then files a Notice of Election, and the executors of the estate don’t dispute it and don’t try to find any loopholes to the Right of Election and just give the spouse the entire elective share. The Wife then uses that inheritance real estate attorney to help her sell the house so she can receive the money.

      However, the more common and more frequent example when it comes to the Right of Election is when the Wife was legally married and is then left out of a will in favor of children from the first marriage. This time, however, the children try to use a loophole and claim that the spouse who died actually transferred property to children from their first marriage before their death. The children then tell the wife that there is no money in the estate to claim against. The Wife then contacts an experienced New York real estate inheritance lawyer who then advises her that any money gifted by the decedent within a year before the husband’s death is considered a part of the estate for the purposes of calculating the elective share. The Wife and her attorney use this argument before the Court, and the Court accepts that argument and grants Wife her portion under the Right of Election of what she is entitled to receive. As above, the Wife then uses that inheritance real estate attorney to help her sell the house so she can receive the money.

      In both real-life examples, after the Wife receives the house, she hires an experienced inheritance real estate law firm to provide her legal advice about how she can still legally inherit the real property even if she may not be listed in the will.

      FAQ

      Does a prenuptial agreement survive death?

      It may.  In New York, a well written prenuptial agreement may stop the Right of Election and prevent a spouse from getting their inheritance.  Accordingly, it is important to have any prenuptial agreement be reviewed by an experienced inheritance real estate attorney.   

      Is New York a community property state?

      No.  In community property states, property acquired throughout the duration of a marriage is considered to be jointly owned by each spouse and is divided equally in the event of a divorce. On the other hand, equitable distribution, which New York adheres to, seeks to divide marital property in a fair manner, even though it might not necessarily be equal.  As such, several factors are taken into consideration.  Some of these factors include:

      length of the marriage
      Income and property of each spouse at the time of marriage and divorce
      Age and health of each spouse
      Need of parent with custody to live in the family home 
      Any pension, health insurance, and inheritance rights either spouse will lose as a result of the divorce
      Whether the court has awarded spousal maintenance or alimony

      Accordingly, if the husband disinherits the wife out of his will, the wife may still be deserving of part of the estate, including the house or real property. Again, an experienced inheritance real estate attorney should be consulted.

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        How long does probate take in NY?

        In New York, creditors are allowed up to seven months to file claims against an estate. Accordingly, it generally takes a minimum of eight or nine months to complete the probate of even a relatively modest estate. However, a more complex and valuable estate may well take over a year to probate.

        Can nieces and nephews contest a will?

        If there are no surviving siblings, then the surviving nieces and nephews of those siblings are awarded inheritances, equally divided amongst surviving nieces and nephews. Accordingly, anyone can have the standing to contest a will given the right facts. Will contests are not limited to the deceased’s children. Again, an experienced inheritance real estate attorney should be consulted.

        What is the new inheritance law?

        Under New York intestate succession law, your spouse will receive up to the first $50,000 of your estate, plus half of the balance of your estate. Your children will receive the rest. New York entitles surviving spouses of decedents who have disinherited them to a piece of their estate. Since the inheritance law can be complex, an experienced inheritance real estate attorney should be consulted.

        Legal Advice From Real Estate Inheritance Lawyer NYC

        Just because you are left out of a will does not mean you are left out of the inheritance, including the real estate or house. An experienced real estate inheritance lawyer will review any will and prenuptial or postnuptial agreement and then advise you on whether you are still entitled to your inheritance, even if you are not listed in the will. Since oftentimes, inheritances can be quite large, especially if real estate is involved, it is no laughing matter and shouldn’t be handled as such. Accordingly, it will take the experience and knowledge of an inheritance real estate attorney to be able to analyze the facts and apply the law.

        moshes law

        An inheritance real estate attorney from the Law Office of Yuriy Moshes can provide you assistance and knowledge about spousal rights after death, probate assets, what the surviving spouse is entitled to, and always abides by attorney client privilege. Their offices help spouses and decedents in the New York City area including all its boroughs (Manhattan, Brooklyn, Queens, the Bronx, and Staten Island) as well as Northern New Jersey, Long Island, and Upstate New York.

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