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WHAT IS A RIGHT OF ELECTION? CAN YOU DISINHERIT A SPOUSE?

25
May

By Jason Stern

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RIGHT OF ELECTION :

Can you disinherit a spouse?

The answer is no. You would be surprised how often this issue comes up in the practice of estate law. Within the enaction of the Estate, Powers & Trusts Law 5-1.1(a), otherwise known as EPTL 5-1.1(a) a spouse who has been disinherited from their significant other’s estate can exercise their right of election. Simply put, the legislature declared that there is a fundamental interest in having the spouse of a decedent financially provided for no matter what the deceased husband or wife may have provided for in their will. Therefore, should someone disinherit their spouse while they are legitimately and legally married, their surviving spouse would be able to exercise what is known as their right of election and collect a significant portion of the remaining assets.

What happens when a spouse dies without a will and depletes the estate of all assets prior to their death using trusts or joint bank accounts?

The answer is still the same. The surviving spouse of a deceased husband or wife who died intestate (no will) is still entitled to collect a substantial share of the estate through their right of election even if no assets were left in the estate. Meaning, to insure the surviving spouse is provided for, the Courts would allow for the invasion of any trusts, joint bank accounts or real estate with beneficiaries attached, created by the decedent to circumvent their spouse from collecting upon their death.

How does a spouse that has been disinherited exercise their right of election?

Pursuant to EPTL 5-1.1(d) there is a small window for a disinherited spouse to exercise their right of election. The best estate attorneys in Queens and New York agree that it is always sound to seek out competent counsel as soon as possible in all estate matters, especially in cases as time sensitive as these.