New York law affords surviving spouses important rights and benefits. In order to preserve all rights and benefits granted under the law, a surviving spouse must adhere to time-sensitive deadlines provided by statute. The failure to meet one of the probate deadlines can cause a surviving spouse to lose one or more spousal entitlements.
What if a Spouse Dies Without a Will?
- INTESTATE. When an individual dies without a will, intestate succession law will govern. Under New York law, a statutory framework determines how a decedent’s estate will be distributed. This is referred to as Intestate Administration.
- INTESTATE SHARE. If a spouse dies without a Will, the surviving spouse receives an intestate share.
- SHARE OF SURVIVING SPOUSE – NO CHILDREN. If the only survivor is a surviving spouse then the surviving spouse receives the entire estate of the decedent.
- SHARE OF SURVIVING SPOUSE – CHILDREN OF DECEDENT. If there are descendants of the decedent, regardless of how many, the surviving spouse receives the first $50,000 of the estate, and one-half of the rest, with the children receiving the other half.
What is a Pretermitted Spouse?
- PRETERMITTED SPOUSE. If a person makes a Will and then marries a person not provided for in the Will, the surviving spouse is called a pretermitted spouse. Under New York law, a pretermitted spouse is entitled to take a share of the estate as if the decedent died intestate.
Elective Share or Election Against a Will
- ELECTIVE SHARE. Under New York law, a surviving spouse has a right to share in a decedent’s estate. In essence, a surviving spouse’s Right of Election renders it impossible to disinherit a spouse. EPTL § 5-1.1-A provides that a surviving spouse has the right to override the Will’s terms and receive the greater of $50,000 or one-third of the “net estate.” EPTL § 5-1.1-A is an all-encompassing statute that includes in the net estate the following items: Probate estate, payable on death accounts (POD), transfer on death and similar accounts; jointly owned accounts or securities based on the amount the decedent could withdraw, Totten Trusts accounts, jointly owned real estate, assets held in a living trust, most assets with beneficiary designations, certain gifts (often the cash value equivalent) made by the decedent one year prior to death, and property transferred in satisfaction of the elective share prior to death. Importantly, the decedent’s debts, administration expenses and reasonable funeral expenses are deducted from the net estate and thereby reduce the elective share. The value of the elective share is satisfied on a pro-rate basis from gifts to beneficiaries under the will, gifts to beneficiaries of testamentary substitutes, and shares of intestate distributes. For a more detailed calculation of the New York Elective Share, go here.
- DEADLINE FOR FILING FOR THE ELECTIVE SHARE. The elective share election must be made within six months from the date of issuance of letters testamentary (if there was a Will) or from letters of administration (if there was no Will). The share is not automatic; the surviving spouse must take action. Pursuant to EPTL § 5-1.1E a surviving spouse must serve written notice of this election to the personal representative or the executor, depending upon the case. There are exceptions to this these statutory time limitations affording Surrogate’s Court judges some leeway. It is important, however, to act as quickly as possible to avoid any pitfalls that may result from a failure to make such an election.
Pursuant to EPTL 5-3.1, families of the decedent are afforded important property rights under New York Law. Specifically, the law provides that certain property be considered exempt property, thereby passing automatically to a spouse regardless of intestate succession laws or the terms and provisions of a will. In fact, up to $92,500 worth of property may be exempt. The exempt property is enumerated by statute as follows:
- One motor vehicle not exceeding $25,000 in value. In the alternative, rather than receiving a motor vehicle, the surviving spouse may choose to receive cash equal to the value of the motor vehicle, not to exceed $25,000.
- Money, including but not limited to cash, checking, savings and money market accounts, certificates of deposit or the equivalents thereof, and marketable securities, not exceeding $25,000 in combined value. However, if the decedent’s assets are not sufficient to pay the reasonable funeral expenses of the decedent, the money must first be applied to cover the shortage.
- Up to $20,000 may be claimed for:
– All housekeeping utensils
– Musical instruments
– Sewing machine
– Household furniture and appliances (including computers and electronics)
– The decedent’s clothing
- Up to $2,500 may be claimed for:
– Family bible or other religious books
– Family pictures, books,
– Tapes (including video, DVD, CDs), and other electronic storage devices
- Up to $20,000 may be claimed for:
– Domestic animals with their necessary food for 60 days
– Farm machinery
– One tractor and one lawn tractor
Title to exempt property automatically vests in the surviving spouse. It is prudent to consult with an experienced probate attorney in order to facilitate petitioning the Surrogate’s Court to issue necessary documents to facilitate the transfer of property or funds to the surviving spouse.
Social Security Death Benefit
- SOCIAL SECURITY DEATH BENEFIT. Applying for a Social Security lump sum death benefit (currently $255) must be filed within 2 years of the date of death.
- SOCIAL SECURITY BENEFITS FOR A SURVIVING SPOUSE. It is also important to ensure you receive any and all payments you may be entitled to as a surviving spouse from Social Security.
- MARITAL AGREEMENTS. Martial Agreements which are often referred to as prenuptial agreements, ante-nuptial agreements, and post-nuptial agreements, can waive or create rights upon the death of a spouse. It is imperative to have a lawyer review these agreements who is familiar with the probate process to properly address any rights you may have at death or as a surviving spouse. It is also important to have these documents properly reviewed by experienced probate lawyers to ensure any death time provisions are properly addressed prior to signing any of these agreements. Many of the rights of a surviving spouse can be waived or increased in properly drafted agreements.
- TIMELINE TO FILE A CREDITOR CLAIM. If a surviving spouse of a New York decedent has a Marital Agreement, it is imperative that his or her attorney file a protective creditor claim to preserve these contract rights of the surviving spouse, within seven months of the date the Surrogate’s Court issuance of letters testamentary (if there was a Will) or from letters of administration (if there was no Will).
- FORM AND VERIFICATION OF CLAIM. Filing a claim against the estate of a decedent must be made in proper form. The claim must be in writing, contain a statement of the facts upon which it is based, and the amount of the claim. Failure to comply with these requirements may result in your claim being rendered unenforceable in court. In order to avoid unnecessary risk, it is advised that experienced counsel be retained to ensure that the claim is properly protected and all the rights of the surviving spouse are preserved.
Requirement to File a Known Will
- Assets under $30,000. There is no requirement that a will be probated if a decedent died with assets valued at less than $30,000.
- Assets valued at $30,000 or more. Before a will has any legal effect, it must be admitted to probate by the Surrogate’s Court located in the county where the decedent died. The Court must then make a determination that the will is valid. Of course, a will that has not been admitted to probate has no effect. An Executor of a Will may only obtain the requisite authority to act under a will through the probate process.
What If I Cannot Afford a Probate Lawyer to Represent Me In Procuring My Surviving Spouse Rights?
- Some probate lawyers who handle a large volume of surviving spouse cases will be flexible and consider arrangements on a contingency basis or on a pay-at-the-end basis, where the surviving spouse client has no up-front payment obligation.