Legal Question in Investment Law in New York

IRA'S beneficiary/spouse/other

NYS law: does a spouse have to sign off as an IRA beneficiary if another is named? Does the WILL override the bene choice? My friend's deceased husband named his children as bene's to IRA'S with Fidelity in his will. She also thinks they're named on the IRA's . She signed a paper not to contest the will!! Where does she stand.

Any light you can shed on this will be helpful.


Asked on 12/03/08, 9:31 pm

1 Answer from Attorneys
Warren Markowitz Warren R. Markowitz, Esq

Re: IRA'S beneficiary/spouse/other

A beneficiary of an IRA, so long as it is stated specifically in the IRA documents will override a bequest in a will. This is similar to a life insurance policy naming a beneficiary. This is known as a testamentary substitute.

If the will names another, the IRA custodian is supposed to dispense the IRA to the persons listed in their records as beneficiaries not the will. In this instance, the IRA Custodian should dispense the IRA to the children in accordance with the given instructions.

When did she sign a document to not contest the will? Has she taken her elective share? NYS does not allow a spouse to disinherit the other. According to NYS EPTL 5-1.1-A the spouse is entitled to either $50,000 or 1/3 of the value of the estate. In this case she should be able to include the value of the IRA as part of the gross estate in her calculation.

If there are any questions, please contact my office via email.

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Answered on 12/03/08, 10:50 pm


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