Estate, Powers and Trusts, § 5-1.3: Revocatory Effect of Marriage After Execution of Will

A last will and testament is the best way to ensure that your assets will be distributed according to your wishes. However, if you pass away with a surviving spouse, under New York law there are special rules that will apply related to the distribution of assets to that surviving spouse. These rules were put in place to ensure that a surviving spouse would not be disinherited. One rule is related to provisions of a will that was drafted prior to 1930. Under New York's Estate, Powers and Trusts law section 5-1.3, if you drafted a will prior to 1930 and later married, then upon your death your spouse will receive a distribution from your estate based on New York’s rules if intestate succession. The rules of intestate succession apply when someone passes away intestate, meaning without have left a valid will. To learn more about estate planning and a spouse’s rights, contact a New York Estate 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.

1. Right of election by surviving spouse: Estates, Powers and Trust, section 5-1.1-A
2. Disqualification as surviving spouse: Estates, Powers and Trust, section 5-1.2
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

Under New York law, if you executed a will prior to 1930 and married anytime afterwards special rules apply to your surviving spouse’s rights to your estate. Under this special rule, the surviving spouse would be entitled to his or her intestate share of the decedent’s estate. In other words, the probate court will determine the amount that the surviving spouse will receive based on the laws of intestacy and not on what the decedent’s will states. The exception to this rule is if the spouses executed an ante-nuptial agreement that provides for the surviving spouse.

In addition, if distribution is made under the will to beneficiaries without the surviving spouse receiving his or her intestate share, the surviving spouse can recover assets from the beneficiaries.

1. If the testator leaves a will executed prior to September first, nineteen hundred thirty and marries at any time after such will was executed, the spouse who survives such testator is entitled to succeed to the same portion of the testator's estate as would have passed to such spouse had the testator died intestate, unless provision was made for the surviving spouse by ante nuptial agreement in writing.  No evidence shall be admissible to impair or defeat the rights of a surviving spouse hereunder except to establish the existence of such ante nuptial agreement.
2. A surviving spouse may recover the portion of the testator's estate to which he is entitled under this section from the beneficiaries, ratably, out of the portions of the estate passing to such persons under the will.  In abating the interests of the beneficiaries the character of the testamentary plan adopted by the testator shall be preserved to the maximum extent possible.
3. A surviving spouse may waive his right under this section to an intestate share of the testator's estate, and may accept in lieu thereof any benefits he may have received, in whatever status, under the will.

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. In addition, it is critical that your estate planning documents are consistent with the complexities of New York law. 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