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Disinheriting a Spouse: Rules and Limitations in New York State


An engraving created in 1894 by the artist Walter Dendy Salder called “The New Will: Everything to My Wife Absolutely!” vividly portrays an older man of wealth who has married a younger woman visiting an attorney to prepare their estate planning documents. The engraving stands for the assumption that a spouse would want to leave the other their entire estate. In reality, this is often not the case. There may be many reasons why one spouse may decide not to leave their entire estate to the other. Perhaps one spouse is on a second or third marriage and would like to leave a portion of their assets to

children from a prior marriage, or maybe the spouse is unhappy in the marriage and is considering a divorce. While many possible scenarios exist why a spouse may wish to disinherit the other, New York State law provides limitations which must be considered.

For those considering disinheriting a spouse, they should know that in most cases, without a pre-nuptial or post-nuptial agreement, a surviving spouse is entitled to:

  1. “Elective Share” – $50,000.00 or one-third of the entire estate, whichever is greater; and
  2. “Personal Property” – Certain personal property of the deceased spouse including housekeeping utensils, musical instruments, sewing machines, jewelry not addressed in a Will, clothing, household furniture and appliances, electronics not exceeding $20,000.00 in value, the family Bible or religious books, family pictures, books, media not exceeding $2,500.00 in value, and livestock and farm supplies/equipment up to $20,000.00 in value, one automobile or $25,000.00 credit toward the purchase of the deceased spouse’s vehicle, and $25,000.00 in cash from financial accounts of deceased spouse.

Even if total disinheritance of a spouse is sought, absent a Pre-nuptial or Post-nuptial agreement, or other specific situations, a spouse may not be entirely “cut out” of the other’s estate, as the surviving spouse can inherit up to $106,000.00. However, if the estate of the spouse creating a Will is significant, limiting the surviving spouse to only an elective share and the other mandatory distributions required by law may allow the spouse creating the Will to provide for children from a prior marriage, elderly dependent relatives, continuation of a family-owned business without interruption due to their passing, or charitable contributions.

If an individual is considering leaving less than all of their Estate to their spouse, it is imperative that they have estate planning documents prepared. Without a Will, a person will be considered to have died “intestate,” meaning that their estate will be distributed to their closest living relatives. In a situation where an individual passes having no children and a surviving spouse, the surviving spouse would inherit their entire estate. If a person passes with a surviving spouse and children, the surviving spouse will inherit the first $50,000.00 and half of the remainder of the estate, with the children sharing equally in the remaining half of the estate.

Unlike the Salder engraving, everything does not have to go to the wife (or the husband) following the death of a spouse. However, if limitations on the inheritance of a spouse is sought, careful estate planning is required to ensure that such goals are achieved through enforceable estate planning documents.

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