Spouses have a legal right to an inheritance, which can take priority over a will. In New York, marriage gives spouses certain rights when their partner dies. If someone tries to disinherit their spouse, that attempt may not be successful. A surviving spouse can take up to half of an estate after payment of the decedent’s debts and taxes regardless of what a will provides. If the decedent left no surviving children, the spouse can take half of the estate. If he or she did leave children, the spouse can accept a third of the estate and the remainder goes to the children. If one-third is less than $50,000, the surviving spouse can take $50,000 instead.
If a spouse is disinherited in a will, that spouse would have to bring a court action to claim the legal share. However, if a surviving spouse doesn’t object, the will is honored. Spouses have six months to notify the court if they disagree with the will.
New York law also protects spouses when their partners die without leaving a will or “intestate.” If a decedent dies intestate and there are no children, his surviving spouse inherits his or her estate. Otherwise, he or she receives $50,000 and the children share the remaining half. If a decedent’s children die before him or her but he or she has grandchildren, the grandchildren would inherit their parent’s share.
Divorce terminates inheritance rights. Unless the decedent specifically states in his or her will that he or she wants a former spouse to inherit, a divorce overrides the will. For assistance in creating a will or determining bequests, consult with an experienced estate planning attorney.