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INHERITANCE RIGHTS OF SPOUSES

Inheritance Rights used in determining the division of marital assets is the loss of pension and inheritance rights. While the loss of pension rights has been mitigated by the Court of Appeals case of Majauskas v. Majauskas, the loss of inheritance rights is rarely used by the court. Nevertheless it remains a common question asked by those involved in a divorce, and may play a factor in some cases, especially for longer marriages involving significant assets. The following is a list of the rights spouses have in each other’s estates. Our attorneys are not only trained in handling simple foreclosure matters, we take care of complex estate litigation in the event of death, probate, a contest or many other complex issues in Nassau County, Suffolk County, Queens County, Bronx, Westchester, Richmond County, Manhattan and Brooklyn Kings County New York.

Spousal Rights Under an Administration Proceeding

When a person dies without a will, the laws of intestate succession govern. In essence, New York law provides a default will for every person, and it is governed by EPTL 4-1.1. This type of matter is called an Administration Proceeding.
A spouse has two rights under the laws of intestate succession. A spouse is first in line to manage the estate as the administrator. Should the spouse be unable or unwilling, the EPTL provides a list of successive administrators. The spouse may have to post a bond, although this requirement may be waived on consent of all people entitled to share in the estate. It is very common for a will to waive this requirement as well, but absent such a directive, the bond remains the default requirement.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers
Spouse’s Right of Election

A Spouse’s Right of Election makes it impossible to disinherit a spouse in New York. Under EPTL 5-1.1-A, which applies to decedents dying after September 1, 1992, a spouse has the right to override the terms of a will, and 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.

Exempt Property

A little known but important property right for families of a deceased spouse is known as exempt property, and is found in EPTL 5-3.1. Exempt property is property which passes automatically to a spouse or children under the age of 21, regardless of the laws of intestate succession or the terms of a will. Up to $50,000 worth of property may be exempt. However, the exempt property is broken down into five categories, each with a maximum dollar amount. If the full dollar amount for one category is not used, or if a particular item is not in existence, there is no carryover or credit and the exempt dollar amount is lost.

The Right to Act as Executor & the Right to Receive a Share of the Estate Under the Will

Unless the will of the deceased person expressly provides otherwise, a 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

The Right to Share in the Recovery of a Money Judgment for Financial Loss Resulting from Wrongful Death.

A spouse is entitled to seek compensation for the wrongful death of a spouse. Once divorced, the former spouse is no longer entitled to a share of that award.
EPTL 4-1.1, 5-1.1A, 5-3.1, DRL 236 B(5)(d)(4)
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You should be prepared if a loved is going into a nursing home or already resides in a nursing home
You should know you have certain legal rights and must be very selective of the Lawyer or Law Firm that you chose to represent you. Have an Attorney council you on the Right Decision for You.

Trust vs WillsRemoval of a Trustee * Guardianship * Probate * Beneficiary Rights
Medicaid Asset Protection * Probate Litigation * Estate Litigation * Living Trusts
In Home Care * Supplemental Needs Trusts  * Fraudulent Transfers

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