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What To Do If You Are Written Out Of Your Spouse’s Will?

what to do if you are written out of your spouse's willIf you are a surviving spouse, New York State law protects your spousal inheritance rights.

As a surviving spouse, you are entitled to at least an “elective share” of the assets. You are entitled to receive one-third of the estate or the greater of $50,000, including properties.

Of great importance is that property subject to the right of election includes non-probate assets as well, such as retirement accounts, joint bank accounts and other assets referred as “testamentary substitutes”. One such asset which would not be subject to the elective share would be proceeds from a life insurance policy to a named beneficiary other than the spouse.

Furthermore, while a spouse cannot be “disinherited” from their spouse’s estate (as they have a right to an elective share, which is one-third of the gross estate), one can choose to consciously not include other relatives like children. However, for purposes of avoiding a potential will contest, it would benefit the testator if they at least acknowledge that child (referred to as “issue”) and state that for reasons known to the testator, that they choose to either disinherit the issue entirely, or rather leave a nominal amount for that person.

If you are a surviving spouse and is written out of your spouse’s will, NY law gives you the right to file a “spousal right of election”. You are given six (6) months to file for spousal right of election after an Administrator or an Executor is appointed.

If you are a surviving spouse and needs to file a spousal right of election, Michael W. Alpert, Esq. can help you. Call 516-280-7288 to set up a FREE consultation or email at