New York State Marital Inheritance Laws

New York State Marital Inheritance Laws

New York law protects a surviving spouse from being disinherited when their husband or wife dies. The subject of spousal disinheritance can become a significant issue when substantial assets are at stake and the surviving spouse is either intentionally excluded from a spouse’s Will or Trust, or is unwittingly omitted from a Will executed by the deceased spouse before their marriage.

At Ely J. Rosenzveig & Associates, our attorneys have extensive experience representing married couples, and drafting for them testamentary documents that achieve their stated intentions, and representing surviving spouses whose inheritance was not properly provided for by their now deceased spouse.

Spousal Rights to Inherit in New York

The State of New York does not approve of a husband or wife leaving their surviving spouse destitute, either by design or by neglecting to update a Will. There is a strong public policy discouraging any transaction by which a spouse’s claim to assets is unreasonably foreclosed, forcing them to become financially dependent on public resources.

Instead, the law provides for the surviving spouse with the “right of spousal election.” This right applies whether the deceased spouse left a Will or died intestate (without a Will).

Spousal Inheritance When Decedent Left No Will — If a spouse dies without leaving a Will, the laws of intestate succession govern how and to whom any estate assets are distributed after the payment of any debts or estate liabilities. A surviving spouse may elect their preferred inheritance share:

  • surviving spouse and no children of decedent — Spouse inherits 100% of estate
  • surviving spouse with children of decedent — Spouse inherits $50k plus 50% of remaining estate, children take remaining $ in equal shares

Spousal Inheritance Rights When Decedent Left a Will — When a deceased spouse leaves a Will in which their spouse’s share of the estate is denied or falls beneath the threshold that the law entitles them to, then the surviving spouse’s equitable claim can be asserted against the other estate assets, including what are called “augmented estate assets.”

The surviving spouse’s right to elect their share must be filed within six months of the court’s appointing an executor of the estate.

If the deceased spouse has children, the surviving spouse can elect either to take $50,000 or one-third of the value of the estate assets (including testamentary substitutes), whichever is greater. If the deceased spouse has no children, then the surviving spouse can elect to take $50,000 or one-half of the estate’s value, whichever is greater.

Augmented Estate Assets — When a surviving spouse is not provided for in the Will of the deceased spouse, assets not owned in the deceased’s name alone, and other assets in which the decedent spouse may have had an interest at the time of their death can be considered part of the augmented estate assets (testamentary substitutes). Normally, these assets would not be included in the decedent’s estate in the probate court. However, they are included in the counting of assets if the surviving spouse elects to take their legal share of the deceased spouse’s estate rather than $50,000.

New York State Marital Inheritance Laws
If a spouse dies without leaving a Will, the laws of intestate succession govern how and to whom any estate assets are distributed after the payment of any debts or estate liabilities. A surviving spouse may elect their preferred inheritance share.

These augmented estate assets could be funds the decedent held in joint bank accounts, pay-on-death (POD) accounts, assets held in revocable trusts, and life insurance death benefits with a named beneficiary other than the surviving spouse, retirement or pension accounts, and other legal instruments by which assets were directed outside the purview of the Surrogate’s (probate) court.

Gifts made to third parties or any transfers to trusts made within one year preceding the decedent’s death are also presumed to be intended to evade the spousal equitable claims to inherit, and can be included in the decedent spouse’s estate for the purposes of calculating the surviving spouse’s rightful elective share claim.

Assets Not Subject to Spousal Inheritance in New York

There are a number of assets excluded from the equitable elective share claims of a surviving spouse who was not provided for in a Will:

  • Assets inherited solely by the deceased spouse individually,
  • Assets acquired by the deceased spouse prior to the marriage, and not intermingled with marital assets,
  • Assets excluded in a valid prenuptial or postnuptial agreement,
  • Gifts made by third parties to the decedent individually,
  • Worker’s compensation awards for the decedent’s pain and suffering,
  • Personal injury awards for the decedent’s pain and suffering.

Automatic Spousal Set-Aside Exempted from Inclusion in Decedent’s Estate

New York law also entitles a surviving spouse to retain certain items and assets that are exempt from inclusion in the decedent’s estate:

  1. Household items and tangible personal property (including jewelry if not disposed of in will) not exceeding $20,000 in value;
  2. Religious books, pictures, and assorted media not exceeding $2,500 in value;
  3. Domestic and farm animals with their necessary food for 60 days, and certain farm equipment not exceeding $20,000 in value;
  4. One automobile not exceeding $25,000 in value;
  5. Checking, savings, cash, cash equivalents, and marketable securities not exceeding $25,000 in value, reduced by the excess value, if any, of items in the foregoing categories (1) through (4).

Ely J. Rosenzveig & Associates — Experienced Probate and Estate Litigation Attorneys

Experienced probate attorneys know that disputes among family members, children from previous marriages, a current spouse, and other beneficiaries, often devolve into bitter acrimony, and attendant heartache, and trauma for all involved.

Whether you are a surviving spouse who was mistakenly left out or intentionally excluded from your spouse’s Will, or you are contesting an unreasonable or unfounded spousal election claim to an estate in  which you are a beneficiary, Ely J. Rosenzveig & Associates will provide experienced legal representation throughout the Surrogate’s Court proceedings, and will assist meaningfully in coping with the fragile and emotionally fraught family dynamic at play.

Success in estate litigation requires a thorough understanding of New York statutory law and Surrogate’s Court procedure. Our law practice focuses exclusively on the matters at the heart of your litigation.


Contact Ely J. Rosenzveig & Associates for a case review.
Call 1.914.816.2900 or email us at: [email protected]


Ely J Rosenzveig
Ely Rosenzveig

Ely J. Rosenzveig practices principally in the fields of elder law, trusts & estates, tax planning, employment law, and mediation. He has extensive experience in federal and New York State tax law, and has successfully represented a wide range of clients on FBAR & FATCA compliance issues. Ely also practices employment law, with a particular emphasis on age and disability discrimination, negotiating compensation agreements, and severance issues.

With his extensive background in the law, his experience as a congregational rabbi, and his specialized training in Mediation at Harvard Law School, Ely is also available as a professional mediator to help facilitate optimal solutions in matters ranging from family and estate disputes to multi-party commercial issues.