The last will and testament is an important document an individual creates to spell out his or her final wishes to pass on the assets of an estate to friends, family, and business partners. However, New York probate laws do put limits on the extent to which a person may exclude his or her surviving spouse spouse from a will. Just as in many states, New York does not allow spouses to be cut out of wills, not matter the language contained in the document.
In situations where a deceased person excludes his or her spouse from a will, the New York Surrogate’s Court hearing the case will step in to award a certain percentage of the estate to the surviving spouse. Just as in a divorce, the law gives certain property rights to spouses to assets like homes, cars, and bank accounts that cannot necessarily be undone by a written document.
Whether or not someone passes away with a last will and testament, the deceased’s heirs must be notified my the executor of the estate that a the estate has been entered into Surrogate’s Court. In order to pass the estate through probate, the executor will need each of the decedent’s heirs to sign a waiver giving up their individual rights to challenge the will and the estate. Although it is usually not an issue to have heirs sign the waiver and agree to the split of the estate, not every situation is harmonious.
If, for example, a spouse is left completely out of a will or otherwise does not receive what he or she believes is a fair portion of the estate, that individual may choose to refrain from signing the waiver and thus challenging the will altogether. Under New York law, spouses are entitled to receive at least one half of an estate, if there are no surviving children and at least one-third of an estate where the couple has surviving children.
It is also important to note that certain assets are outside the scope of a will and therefore pass directly on to the spouse, regardless of the language of any will. Furthermore, surviving spouses automatically receive up to $11,000 in household items, $15,000 in bank accounts or personal property and $10,000 of the value of a car. The only way to terminate these rights is through divorce or separation, unless otherwise state in the deceased’s will.