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By John R. Merlino Jr. Esq.
Founding Attorney

Q: Can I disinherit my spouse?

Even in the best circumstances, the relationship between an adult child and their divorced parent’s new spouse can have its rough moments. Nowhere is this more pronounced than in the field of estate planning, as New York and New Jersey estate planning attorneys can attest.

There is a literal arsenal of estate planning tools for each individual’s personal scenario. Sitting down with an estate planning expert — to write a last will and testament, consider living trusts, and do some planning for incapacity — will bring peace of mind now and hopefully avoid fighting later on.

What is the spouse’s elective share?

While state laws differ, a surviving spouse is generally entitled to an elective share of their deceased spouse’s estate. Rare exceptions may include cases of abandonment or cases where the right has been waived in a prenuptial or post-nuptial agreement. This law prohibits a married person from disinheriting their spouse completely. It applies whether the spouse has been omitted from the will entirely or mentioned and given a paltry bequest. It also applies regardless of whether there are children or not. But the surviving spouse must timely and actively claim—or “elect” — this share. In New York, the right of election (as it is called) is the greater of $50,000 or 1/3 of the deceased spouse’s net estate — or the total net estate if the net is less than $50,000.

Sometimes, adult children or the new spouse may attempt to coerce an aging or sickly parent or spouse into transferring assets and/or changing their will to cut the other out. This can result in a will contest where the person who would have inherited — under either the prior will or through intestacy laws if there was no valid will — attempts to get the new will thrown out due to such grounds as fraud or undue influence/coercion, lack of testamentary capacity or sound mind, or improper execution.

This happened recently in New York where two adult sons of a rich banking executive were reportedly accused by his second wife of “coercing” him into changing his will shortly before he died and cutting her out.

If you need assistance with an initial estate plan or would like to modify an existing one, the estate planning experts at Merlino & Gonzalez can help you. Contact us today to schedule a consultation.

From our offices in Staten Island, New York and East Brunswick, New Jersey, we help clients in both states in all aspects of estate planning and estate administration.

About the Author
John is a fierce advocate and the office guru for problem-solving and brainstorming. He guides clients through every stage of a real estate transaction from offer to contract, navigating through nerve-shattering home inspection and title clearance concerns, maintaining constant contact with lenders, conducting the actual closing, and continuing to advise clients with regard to any post-closing concerns.  John brings a practical and fair-minded approach to the process which has earned him the respect of his clients and peers.