Rights of a Surviving Spouse to your Estate How marriage affects your estate plan

Marriage changes more than just your personal life, it can also change what happens to your estate when you die. Whether you have a Will or not, New York law gives spouses important rights that can affect who manages your estate, who inherits your property, and what benefits a surviving spouse may receive.

This article answers your questions on how marriage affects your estate under New York law and why it is important to review your estate plan if you are estranged from your spouse.

Who administers your estate?

A common misconception is that a surviving spouse is always in charge of settling their spouse’s estate. In reality, the answer depends on whether you have a Will and whether the people you nominated are able to serve.

If you have a valid Will, you can choose the person you want to be responsible for administering your estate (your “Executor”). You may nominate your spouse, but you do not have to. If the Executor and all nominated successor Executors are unable or unwilling to serve, your spouse will typically have priority to step in and administer your estate. 

If you do not have a valid Will, the court will appoint an Administrator of your estate. Your surviving spouse generally has the highest priority to serve in that capacity. Other family members, such as children, parents, or siblings, usually cannot be appointed instead of your spouse unless your spouse consents or is legally disqualified. 

Who inherits your estate?

Just as marriage affects who administers your estate, it also affects who receives your assets. Whether you have a Will matters, but a spouse also has protections that can override your Will. 

If you have a valid Will, you can direct who inherits your estate. However, marriage limits the ability to completely disinherit a spouse. Even if your Will leaves everything to someone else, your spouse may have the right to claim a portion of your estate through the “right of election” (also called the “elective share”). 

If you do not have a valid Will, the law directs how your estate is distributed.  If you are survived by a spouse and no children, your spouse inherits everything in your estate. If you are survived by a spouse and children, your spouse receives the first $50,000 of your estate plus one-half of the remaining balance, and your children share the other half. If you die without a valid Will, your “estate” is comprised of the assets you own at the time of your death that are not jointly held with another or payable to a named beneficiary. 

What is the right of election?

The right of election is a legal protection for surviving spouses. In general terms, it gives your spouse the ability to claim a portion of your “net estate” even if your Will (or your beneficiary designations) leave your spouse out. In most cases, the elective share is the greater of: $50,000, or one-third of your net estate.

What is your net estate? 

For elective share purposes, your net estate includes certain assets that pass in and outside of a Surrogate’s Court proceeding. Depending on the circumstances, this can include assets held jointly with someone else, accounts that transfer automatically at death by beneficiary designation, and interests in trusts. 

What else is your spouse entitled to?  

In addition to inheritance rights, surviving spouses have the right to receive specific property or allowances before the ordinary estate distribution is completed. These protections are meant to provide immediate support and can apply even when the estate has creditors. Common examples include certain household items, personal belongings, and a vehicle (subject to value limits).

What about employee benefits? 

Some employer-sponsored benefits have special rules. For example, retirement plans such as 401(k)s often require a spouse to be the default beneficiary unless the spouse signs a valid written waiver. Other employer-sponsored benefits, such as group life insurance, may also provide important rights for surviving spouses depending on the policy.

Can your spouse contest your Will? 

Yes. Even if your Will excludes your spouse, they are typically entitled to receive notice of estate proceedings and may object. A spouse may raise concerns about the validity of the Will (for example, lack of capacity or undue influence) and may also challenge whether the nominated fiduciary should serve. 

Can your spouse give up these rights? 

Yes. Spouses may voluntarily waive certain rights, including the right to inherit from your estate or serve as your estate fiduciary, through a valid written agreement. Common examples include:

prenuptial and postnuptial agreements, separation agreements, or a written renunciation. 

Can your spouse lose these rights? 

Generally, your surviving spouse may only be disqualified from their rights with respect to your estate in limited circumstances. Grounds for disqualification may include abandonment, substance abuse, and felony convictions for embezzlement, crimes involving misappropriation of money or breach of fiduciary duty. 

Are estranged spouses disqualified? 

Not necessarily. Simply living apart or having no communication is usually not enough to disqualify a surviving spouse from the rights discussed in this article. Unless there is a valid waiver, a valid separation or divorce agreement, or another basis for disqualification, an estranged spouse may still have significant rights under New York law.

Marriage can impact your estate plan, even if you and your spouse have been living separately for years. Many people are surprised to learn that simply being estranged does not automatically end a spouse’s legal rights. If your marital status or family circumstances have changed, now is a good time to discuss your situation with an attorney experienced in estate planning. 

Anna R. Myers Norton is an associate attorney with O’Connell and Aronowitz, One Court Street, Saratoga Springs, New York. Anna’s practice focuses on trust and estate law, including estate planning, estate administration, and guardianship.