Spousal Right of Election

The surviving spouse of a deceased individual has rights under the law of the State of New York in the probate process. New York State law allows a surviving spouse to inherit even if the spouse is not named in the will or is left a nominal amount. This means that the spouses cannot disinherit one another, even if that is what they wish to do and what their valid will states. This is called the spouse’s right of election.

In most cases, the right is accepted by all parties who are named under the deceased’s will. However, there are instances where family members contest the spouse’s right to inherit. At the law offices of Sweeney, Reich & Bolz LLP, our attorneys protect the rights of individuals and family members involved in disputes over spousal rights.

The surviving spouse is required to file their right of election notice within six months of the will being accepted for probate or the appointment of an executor, but no later than two years after the death of the deceased spouse. Other limitations on the right of election include divorce, as a divorced spouse is not entitled to exercise the right of election, even if he or she inherits under the ex spouse’s will executed prior to the divorce. A surviving spouse is only entitled to inherit if he or she was married to the deceased on the date of death.

There are five factors that could disqualify a surviving spouse from receiving an inheritance or exercising their right of election. In order to prevent a surviving spouse from obtaining the mandated share of the estate under the right of election, the other claimants must demonstrate to the court one of the following disqualifying events:

  • Incest
  • A marriage not recognized in the state of New York
  • A final judgment of separation
  • Abandonment
  • Failure of the surviving spouse to support the deceased during their lifetime

Also, there are instances where a surviving spouse has waived their right of election of the deceased person’s estate through the execution of a valid pre or post nuptial agreement.

As a law firm dedicated to inheritance rights and the protection of individuals who are the rightful recipients of inheritances, our lawyers provide counsel to both petitioners and respondents in disputes over spousal rights. Whether the issue is safeguarding spousal rights or challenging the rights of a surviving spouse, our lawyers are dedicated to protecting our clients’ rights to inheritances.