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Can you disinherit your spouse? The right of election under EPTL §5-1.1(A) and the NY estate law; Estate of Hugh Hefner

26
Feb

By Jason Stern

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Love him or hate him, Hugh Hefner was the visionary who founded Playboy Magazine becoming one of the most iconic businessmen of the 20thcentury.  When Hefner launched his risqué magazine in 1953 at the age of 27 nobody could have predicted how successful the young entrepreneur would become. Over the course of the next 60 years, Hefner would continually challenge social norms, expanding social boundaries, pushing limitations of the freedom of expression and speech while not so quietly amassing a $200 million dollar empire.  At the time of Hefner’s 2017 passing, the 91 year old left behind an estate valued at approximately $55 million dollars.  

Survived by his 37 year old third wife of 6 years, Crystal Harris, and four children from two prior marriages, Hefner chose to leave a will divesting his entire estate to his four children, completely disinheriting his wife.  As a NY estate lawyer with two decades of experience litigating NY estates I can tell you that ordinarily one cannot disinherit their spouse under the NY estate law.  According to the NY estate law, and mirrored by the estate laws of California where Hefner resided, a spouse cannot be disinherited.  Should you have your NY estate lawyer draft your NY will to the exclusion of your significant other, your spouse will exercise their spousal right of election entitling them to One-Third (1/3) of all net assets within your NY estate including assets known as testamentary substitutes.  Under the NY estate law a testamentary substitute is an asset that would ordinarily pass outside your estate such as jointly held bank accounts, real properties that are jointly titled as well as any and all insurance policies and annuities that include beneficiary designations.

So how did Hugh Hefner completely disinherit his wife Crystal Harris from his $55 million dollar estate?

NY Estate Law EPTL §5-1.1 A(e)(2) provides that a waiver and release usually contained within a prenuptial agreement, of the surviving spouse that is “both in writing and validly executed in the manner required by law” relinquishes the spousal right to exercise their spousal right of election. Any NY estate lawyer will tell you absent such a prenuptial agreement that contains an enforceable waiver of the spouse’s right of election, a disinherited spouse shall have the power to exercise their elective share of 1/3 of any and all net assets within the NY estate.  

Hugh Hefner having had Crystal Harris execute such a valid prenuptial agreement, was able to completely disinherit his 36 year old wife of six years entirely from his $55 million dollar estate thus leaving his assets exclusively to his four children.  Do not feel too bad for Crystal Harris as she did receive a $5 million dollar house in the Hollywood Hills in addition to investment accounts valued at $5 million dollars in exchange for executing the prenuptial agreement thus waiving her right to exercise the spousal right of election upon Hugh Hefner’s passing.

As a NY estate lawyer I can tell you this issue of the spousal right of election comes up quite frequently.  In most instances this matter arises within blended marriages where each spouse is remarrying for a second or third time with their own children from prior relationships.  These individuals will unknowingly draft a NY will disinheriting their spouse to some degree in an effort to financially protect their biological children. However if their current spouse is not inheriting at least One Third of their estate within their NY will the disinherited spouse will hire a NY estate lawyer to claim their right of election at some point. 

If you are thinking about drafting a will it does not hurt to speak to an experienced NY estate lawyer. Feel free to call the NYC estate lawyers at The Law Offices of Jason W. Stern & Associates for a free consultation at (718) 261-2444. Our NYC estate lawyers have over 60 years of combined NY estate law experience drafting and probating the wills for families like yours in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Orange and  Dutchess.

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