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LEGAL RIGHTS THAT ARE LOST
BY A DIVORCING SPOUSE-
NEW YORK LAW
This article discusses the legal rights of
a New York resident spouse that are lost as a result of divorce.
Under New York law, when a person dies, his
property passes to survivors in a number of ways. Most common among these
is the Will, which sets out the deceased person’s wishes. Property that is
governed by the Will is known as the probate estate. In addition to the
Will, property can pass to heirs or others by beneficiary designations in
life insurance policies and retirement accounts, Totten Trust bank
accounts (commonly known as “itf” of “in trust for” accounts), and joint
accounts, such as bank and securities accounts. Property that passes to
heirs not as part of the probate estate is called property that passes
outside of the Will. Lastly, property not governed by a Will or that does
not pass as joint property or by beneficiary designation is known as
intestate property. The rights of a spouse in the other spouse’s probate
estate, the intestate estate, and that part of the other spouse’s estate
passing outside of the will are governed by statute. They are:
- The right to inherit a part of the other
spouse’s estate where the other spouse had no Will, known as the
intestate share.
- The right to receive the greater of
$50,000 or one-third of the other spouse’s estate, known as the right of
election.
- Certain enumerated property, known as
the exemption for the benefit of the family.
- The right to receive property under the
will of the deceased person or to act as executor of the will.
- The right to share in a money judgment
for financial loss resulting from a wrongful death lawsuit.
People who divorce lose the rights
mentioned above that were obtained at the time of marriage. This article
discusses those rights in the other spouse’s estate that cease as a result
of divorce.
1. The Right to Inherit
When a New York spouse dies without leaving
a Will, the other spouse is entitled to a portion of the deceased spouse’s
estate the amount of which depends on whether the deceased person was also
survived by children. When there are no children, the surviving spouse
receives the entire estate. When there are one or more children, then the
surviving spouse receives the first $50,000 of the estate and one-half of
the rest of it, and the children share the remainder. (The amount actually
received by the surviving spouse will be reduced by expenses, debts and
taxes paid by the estate, borne pro-rata with any children.) When couple
divorces, each person forfeits his/her intestate share of the other’s
estate.
2. The Right of Election
The right of election exists when a
deceased spouse leaves a Will that is admitted to probate by the
Surrogate’s Court. For 6 months after the Will has been probated, the
surviving spouse has the option to receive the greater of $50,000 or
one-third of the estate under probate outright (as opposed to receiving it
in trust) regardless of what the Will provides for the spouse. This is
known as the elective share. When the Will leaves more than the elective
share of the estate to the surviving spouse, he or she would not exercise
the right of election. The right of election is valuable only if the Will
leaves less than the elective share of the deceased person’s estate to the
surviving spouse. For example, if a person dies leaving a Will giving
everything to his children, the surviving spouse has the right to receive
the elective share (i.e., the greater of $50,000 or one-third of the
estate) despite what the Will provides.
The right of election also exists when the
deceased spouse made certain gifts shortly before death or left joint bank
accounts or jointly owned read estate or other property where the other
joint owner is not the surviving spouse, life insurance the beneficiary of
which is not the surviving spouse, Totten Trust bank accounts not passing
to the surviving spouse, certain retirement accounts of which the
surviving spouse is not the beneficiary, and other property rights, all of
which automatically pass to persons other than the spouse instead of being
part of the probate estate. The right of election against those property
interests exists whether or not the deceased spouse left a Will.
Divorce terminates the right of election by
the surviving spouse.
3. The Exemption for the Benefit of the
Family
A spouse is entitled to certain property of
the deceased spouse irrespective of what a Will provides to the contrary.
That property is legally considered not to be part of the probate estate,
where there is a Will, or the intestate estate where there is no Will.
The property to which the spouse is
entitled is:
- All housekeeping utensils, musical
instruments, sewing machine, household furniture and appliances,
including computers and electronic devices, used in and about the house,
fuel, and clothing of the deceased person, not exceeding $10,000 in
value.
- The family bible, family pictures, video
tapes and computer tapes, discs and software used by the family, and
books, not exceeding $1,000 in value.
- Domestic animals, farm machinery, one
tractor, and one lawn tractor, not exceeding $15,000 in value.
- One motor vehicle not exceeding $15,000
in value.
- Money or other personal property not
exceeding $15,000 in value.
If any item of property mentioned above is
not in existence, no allowance is made in money or other property in place
of it.
4. The Right to Receive Property under
the Will or to act as Executor.
Unless the will of the deceased person
expressly provides otherwise, divorce revokes any provision of the Will
giving the divorced spouse a share of the estate or appointing the
divorced spouse executor of the deceased person’s estate.
5. The Right to Share in the Recovery of
a Money Judgment for Financial Loss Resulting from Wrongful Death.
The survivors of a person whose death was
caused by the wrongful action of another share in the money that may be
recovered in a lawsuit seeking compensation for the financial losses
resulting in the person’s death. Once divorced, the former spouse is no
longer entitled to a share of that money.
CONCLUSION
The foregoing brief summary of the legal
rights forfeited by spouses as a result of divorce should alert persons
contemplating divorce to make appropriate provisions in a separation
agreement to deal with these rights.
© 2003 by Richard A. Whitney
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