Legal Question in Wills and Trusts in New York

Re: spousal inheritance

In most states the surviving spouse may elect to take against a Will that disinherits. The usual percentage is 1/3 of the augmented estate, which the the decedent's estate less debts, etxes, etc. This percenhtage is usually reduced by an amount equal to the personal assets of the survivingm spouse. Example: Decedent's augmented estate is $300. Souse has $75, he/she gets $25. Surviving spouse has $100+, gets nothing. (Watch for transfers by surviving spouse just prior to decedent's death, to reduce his/her estate so can qualify for statutory election).

Q-Tips trusts for surviving spouse (income only) might defeat statutory election, when calculations based upon life expectancy exceed statutory allowance. This calculation controls, even if surviving spouse may be ill and have shorter life expectancy. Pre and post-nuptual agreements may also limit statutory election. (Be careful, post-nuptuals are attackable fairly easily). Only other way to defeat I know of is in Florida if only property is homestead. No survivor election against homestead. Also, possibly a living trust in Florida may be unattackable. This may have been changed recently.

Re: spousal inheritance

In most states the spouses have a right of election so thatthey cannot be dis-inherited. It used to be that you could have a Q-TIP trust- the spouse was an income beneficiary of the her elective share of the estate.

Also, a party could waive their elective share in a pre or post nuptual agreement.

Daniel Clement