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What is the spousal right of election in NYC? Estate of Anthony Bourdain

23
Jul

By Jason Stern

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As a NYC estate lawyer I come in contact with many emotionally charged estate issues on a daily basis.  Perhaps one of the most interesting legal issues arises when someone passes away while disinheriting their spouse.  Although there could be very good reasons for one spouse to disinherit their other half from a NYC estate such as a separation or impending divorce, it is still illegal under the NYC estate law to do so.  For many valid public policy reasons EPTL 5-1.1 of the NYC estate law permits a surviving spouse whose been disinherited from their spouse’s estate to make a timely application asserting their spousal right of election.  For many good public policy reasons a surviving spouse is entitled to their elective share of one-third (1/3) of all the estate assets regardless of whether the assets are probatable (within the estate) or testamentary substitutes (assets passing outside the estate such as trusts and beneficiary designated accounts).  However, under the NYC estate law the surviving spouse must file their Notice of Election with the court and serve all necessary parties within six months of the issuance of letters testamentary or administration.  Once asserted the estate can request an SCPA 1421 proceeding to determine the validity of that spouse’s right of election under the NYC estate law.  In any case you can see how these cases can sometimes become very sensitive for the parties involved and their respective NYC estate lawyers.

Estate of Anthony Bourdain

You did not have to be a culinary expert to love and appreciate the depths to which Anthony Bourdain would fearlessly embark upon his gastronomic adventures of the provisionary arts.  For most of us we knew Bourdain as the gritty, tough, eccentric explorer who would travel the world each week in search of eclectic cuisine and unusual experiences occasionally putting his own health and wellbeing at risk for our entertainment.  Unfortunately, Bourdain’s brilliant and fantastic career would come to an abrupt end on June 8, 2018 when he took his own life.  Bourdain was survived by his eleven-year-old daughter Ariene whom he left his sizable fortune to in both his will and in several trusts.  It is estimated Bourdain’s estate to be valued somewhere between six million ($6,000,000.00) and sixteen million ($16,000,000.00) dollars.

Bourdain’s daughter Ariene was the product of his marriage to her mother Ottavia Busia.  The two were married in 2007.  However, Bourdain and Busia had separated in 2016 and were deep within divorce proceedings to dissolve their marriage when he passed.  As a NYC estate lawyer I can tell you that this is where the NYC estate law intersects with NYC family law and where things get messy.  While Bourdain and Busia were physically separated for two years and in the middle of a divorce at the time of Bourdain’s passing, any NYC estate lawyer will tell you that until a divorce decree is actually issued, the two remained legally married.  As such, now that a NYC probate petition has been filed in Bourdain’s Manhattan estate by NYC lawyers, Busia may choose to assert her spousal right of election.   Pursuant to her spousal right of election Busia would be entitled to one-third (1/3) of all of the assets within Bourdain’s estate.  Unless Bourdain and Bursa executed prenuptial agreements waiving their respective spousal rights of election in each other’s estates, which is unlikely as the two were married in 2007 and before Bourdain’s rise to stardom, Busia will have claim to one third of Bourdain’s NYC estate.

If you think you or a loved one may have been wrongly excluded from a loved one’s will it never hurts to ask the opinion of an experienced NYC will contest lawyer to see what rights you may have under the NYC estate law.  Feel free to call the knowledgeable NYC estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our Queens estate lawyers have 50 years of combined NYC estate law experience drafting, probating and challenging wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Richmond, Rockland, Nassau, Orange, Dutchess as well as in the State of New Jersey.

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