Spousal Election

Questions About Your Rights as a Surviving Spouse?

When a married person dies with a last will and testament in place, the surviving spouse has a choice — either inherit property of the decedent's estate as provided under the terms of the will, or take one third of the value of the estate under what's known as "the right of spousal election." Like many other states, New York allows for spousal election, thus preventing one spouse from disinheriting another.

To learn what the right of spousal election covers and how to put it to work for you, contact my office in Queens — Barry Seidel & Associates, Attorneys at Law. My practice has focused on New York probate law and estate administration since 1982. Not only can I advise you about the operation of spousal election in your case, I can also help you figure out whether this option will work to your advantage.

Call 718-793-1133 for Advice About Spousal Election in New York City, Long Island or Westchester

In some cases, this is an easy choice to make. For example, if the will leaves everything to the decedent's children from a previous marriage, then the surviving spouse will certainly exercise his or her election rights. Sometimes, however, the question is not so clear, and a lawyer's advice can help you weigh the pros and cons of taking under the will or accepting the one-third share provided by law.

I can help you get a solid understanding of just what the decedent's estate contains. This process can be deceptively complex. For example, marital property that was held jointly with survivorship rights will pass to the surviving spouse upon death anyway — assets such as the marital home and joint bank accounts usually fall under this category. Life insurance and pension benefits can also be expected to pass to the surviving spouse outside of the estate and probate process.

In some cases, the decedent's estate plan transferred assets into a living trust prior to death, which is another way to keep assets out of probate and possibly out of the hands of the surviving wife or husband. Depending on the specific circumstances of your situation, it may be possible to recover assets previously transferred into trust and have them included in the estate, thus giving the surviving spouse the choice to elect a one-third share or having them distributed according to the parameters of the will.

Are You Sure You Were Married? Or Legally Divorced?

The composition of the estate might not be the only issue to resolve in a spousal election case, however. The marriage itself might need to be established. Was the marriage legal? Does the claimed right of election arise under a common-law marriage established under the laws of another state? Maybe the parties were legally separated but not officially divorced. Even if they lived apart for many years, they could still be legally married, and the surviving spouse could elect a share of the estate's assets.

Find out more about spousal election by contacting my law firm, Barry Seidel & Associates in Jamaica, Queens.