Under New York law, the answer as to whether you can disinherit your spouse is … not really.

In New York, there is something called the spousal right of election, which states that a surviving spouse has the right to assert his or her right to elect to inherit a portion of your net estate. As a result of this law, you cannot disinherit your spouse without your spouse’s waiver of this right.

Although most people consider their estate to be only the asset that passes through their will, when it comes to the spousal right of election, the net estate includes all assets that pass through your will AND most testamentary substitutes that pass by operation of law, such as bank or brokerage accounts with joint owners or beneficiaries, assets in trusts, real property with a life estate and/or joint tenants with rights of survivorship. A notable exception to the net estate is life insurance policies, which means that the proceeds from a life insurance policy is not included in the net estate if someone other than the surviving spouse is named as the beneficiary.

One important exception to the right of election is benefits received from a life insurance policy, which is not included in the net estate. In order to take the elective share, a surviving spouse must assert his or her right of election in writing with the local surrogate’s court within a timeframe specified under the law. If the right of election is not asserted properly within the requisite timeframe, the surviving spouse may not be eligible to take his or her elective share. It is at the court’s discretion to extend the timeframe to assert the right of election when requested by a surviving spouse.

If it is an understood and agreed-upon estate planning strategy for a married couple to disinherit each other, each spouse should affirmatively waive their right of election. This can be done through a validly executed waiver agreement, a prenuptial agreement, or postnuptial agreement. This common estate planning strategy usually comes up with second marriages when spouses have their own children or would like to provide for their own beneficiaries.

It is always important to discuss the spousal right of election when creating an estate plan for a married couple. Contact us with questions or comments.

Eric J. Einhart
Russo Law Group, P.C.
100 Quentin Roosevelt Blvd., Suite 102
Garden City, NY 11530
800-680-1717