Legal Question in Wills and Trusts in New York
I purchased a home in 2009, In 2010 I met my wife & married her in 2013. I solely pay mortgage as per our mutual agreement . I recently prepared a will leaving my home and other assets (pensions & other 401s, condo) to my 3 adult children from my previous marriage. My wife has her own pension and is self sustained. She is fully aware of the contents of my will. We also prepared a prenuptial that mirrors my will. Can this arrangement be later challenged in court in the event of my demise ? Want, if anything can she be entitled to?
1 Answer from Attorneys
In New York, a testator (i.e. the maker of a Will) may not be completely disinherited by their surviving spouse. Pursuant to statute the surviving spouse may exercise a "right of election" against the estate of the decedent. Under this right, the surviving spouse may be entitled to an amount equal to the greater of fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value; or one third of the net estate. Please note that there are many additional provisions of this law that should be reviewed.
In your case, as long as you executed a valid prenuptial agreement, in which each party explicitly waives his/her right to share in the estate of the other, your wife may be precluded from exercising her "right of election."
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