New York Probate Lawyer Blog
When a person dies it is necessary to determine the individuals who have a right to inherit the estate assets. While this may at first seem to be an easy task, the fact is that in many cases the first identification of such persons may be complicated and time consuming.
To begin with, an initial inquiry needs to be made as whether the decedent had a Last Will and Testament. If so, the Will sets forth the decedent’s estate plan and provides for various named beneficiaries. It is also important to see if the Will was prepared by a New York Estate Attorney who may have information regarding the identity of the named beneficiaries and the decedent’s next of kin.
In the proceeding to probate a Will all of the decedent’s distributes (next of kin) must be notified. Also, if there is no Will and the decedent died intestate, the distributees are the persons who are entitled to share the estate assets.
Whether the decedent died with or without a Last Will, it is always imperative to determine if there is a surviving spouse. A husband or wife who survives a decedent has many rights. The New York Probate Lawyer Blog has published many articles concerning spousal rights. For instance, if the decedent died intestate, the spouse is entitled to receive a share of the estate amounting to $50,000 plus one-half of the balance of the estate. Estates, Powers and Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate”, sets forth the beneficial interests of the distributees.
Additionally, if a decedent dies and leaves a Will but does not make any provisions for a spouse, a Right of election may be asserted. EPTL section 5-1.1-A entitled “Right of Election by surviving spouse” provides that a spouse can receive the greater of $50,000 or one-third of the net estate.
Since a spouse has many rights to receive a large share of an estate, there is often estate litigation surrounding a spouse’s right to be paid the spousal portion. There are numerous Surrogate’s Court cases where there is litigation to determine whether a person actually is a surviving spouse. There can be issues as to whether a legal marriage ever occurred or whether there was a divorce. Sometimes a surviving spouse’s right to inherit may be limited by a pre-nuptial or post-nuptial agreement.
A recent Manhattan estate case concerning spousal rights was decided by Manhattan Surrogate Rita Mella on December 13, 2018. In Matter of Estate of Neumann, the Preliminary Executor of an estate commenced a proceeding to determine whether the decedent’s spouse was disqualified from obtaining an elective share due to his abandonment of the decedent and his failure to provide support for the decedent. Surrogate’s Court Procedure Act (SCPA) Section 1421 entitled “Election by surviving spouse” provides procedures to determine the validity of a Right of Election. Pursuant to EPTL 5-1.2 entitled “Disqualification as surviving spouse”, a spouse can lose inheritance rights if he or she abandoned the decedent or failed to provide support.
In Neumann, the Court declined to dismiss the SCPA 1421 proceeding and found that the proceeding was not precluded by the fact that the spouse had been identified in the probate petition and the federal estate tax return as the surviving spouse.
I have represented clients in Surrogate’s Court estate cases concerning various spousal rights, including the Right of Election. These cases can be complicated. Sometimes the matters involve pension or death benefit claims with NYSERS (New York State Employees Retirement System) or other retirement funds. Call me now for a free review if you have a question or issue regarding estate rights. We offer reasonable and flexible free arrangements.
New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens County and the Bronx. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.