Did your spouse dis-inherit you or give you less than you think you deserve? You have options!

Multiple people have reached out to me asking whether they have a right to more than what their spouse left them in the Will. A decedent spouse can write a will, disinheriting the spouse, leaving the spouse with no money, or less than what is allowed under New York law. However, the surviving spouse may still file for an elective spousal share under EPTL 5-1.1.

The spousal elective share is the greater of $50,000.00 and one-third of the augmented estate. The augmented estate is the total of all the deceased spouse’s property, including probate and non-probate assets. Probate assets are real estate, bank accounts, and tangible personal property. Non-probate assets are trusts, life insurance policies, and retirement accounts.

Timeline:

A spousal elective share must be filed within 6 months of the issuance of Letters Testamentary.

If you do not file within the six-month period, then you risk losing the right to the Spousal Elective Share.

When can you not file for a Spousal Elective Share?

If there is a prenuptial agreement or postnuptial agreement in which the surviving spouse waives the spousal elective share, then the surviving spouse cannot assert the elective share.