Estate, Powers and Trusts, § 5-1.2: Disqualification as Surviving Spouse

When some passes away without leaving a will, that person’s assets are distributed to his or her legal heirs according to New York’s rules if intestate succession. Under New York probate law if a decedent leaves a surviving spouse, then that person is always entitled to all or a portion of the decedent’s estate. Children are also legally entitled to a portion. However, under New York's Estate, Powers and Trusts law there are circumstances under which a surviving spouse may be disqualified from receiving a distribution. In order to ensure that your estate is distributed to your loved ones according to your wishes, it is critical that you execute an estate plan that is consistent with both your wishes and New York law. To learn more about estate planning and a spouse’s rights, contact a New York Intestate Succession Lawyer who understands the nuances of New York probate law and who will work closely with you to draft estate planning documents that will meet your needs.

Related Statutory Provisions

1. Right of election by surviving spouse: Estates, Powers and Trust, section 5-1.1-A
2. Revocatory effect of marriage after execution of will: Estates, Powers and Trust, section 5-1.3
3. Revocatory effect of divorce, annulment, or declaration of nullity, or dissolution of marriage on disposition, appointment or other provision: Estates, Powers and Trust, section 5-1.4

Disqualification of a surviving spouse

Under New York law, a surviving spouse will not be considered a “surviving spouse” for purposes of “right of election by surviving spouse” rules and will not automatically inherit a portion of his or her deceased spouse’s estate if:

• There was a final decree of divorce or annulment
• There was a final decree of separation
• The marriage was declared null because it was incestuous
• The spouse abandoned the deceased spouse
• The spouse failed to provide for the deceased spouse even though he or she had the means

Estate, Powers and Trusts, section 5-1.2- Disqualification as surviving spouse

1. A husband or wife is a surviving spouse within the meaning, and for the purposes of 4-1.1, 5-1.1, 5-1.1-A, 5-1.3, 5-3.1 and 5-4.4, unless it is established satisfactorily to the court having jurisdiction of the action or proceeding that:
   1. A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage or dissolving such marriage on the ground of absence, recognized as valid under the law of this state, was in effect when the deceased spouse died.
   2. The marriage was void as incestuous under section five of the domestic relations law, bigamous under section six thereof, or a prohibited remarriage under section eight thereof.
   3. The spouse had procured outside of this state a final decree or judgment of divorce from the deceased spouse, of annulment or declaring the nullity of the marriage with the deceased spouse or dissolving such marriage on the ground of absence, not recognized as valid under the law of this state.
   4. A final decree or judgment of separation, recognized as valid under the law of this state, was rendered against the spouse, and such decree or judgment was in effect when the deceased spouse died.
   5. The spouse abandoned the deceased spouse, and such abandonment continued until the time of death.
   6. A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had the means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having the need of support.

New York Intestate Succession Lawyer

New York estate law is complicated. There are many rules that apply to the distribution of assets to a surviving spouse based on the relationship between the spouses prior to the first spouse’s death. Because family relationships can be complex and no two relationships are the same, it is important that you have duly executed estate plan that takes into account your wishes and your family’s needs. The staff at Stephen Bilkis and Associates has years of experience drafting estate plans for clients as well as trusts, powers of attorney, advanced health care directives and other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations:

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