New York, like all states, provides legal protection for spouses, in terms of inheritance rights. The provisions largely originated from the problems which occurred when a husband would die, providing the bulk or all of his assets to a female companion, thus leaving his wife and children without support. Of course, things have changed, and the laws now apply to men and women. Of course, the purpose of the laws is to make sure that the spouse is provided for financially.
In summary, the law provides that if one dies without a will and leaves a spouse and children, the spouse is entitled to one-half (1/2) of the deceased spouse’s assets, while the children are entitled to the remainder. The spouse is also entitled to some allowances for household goods, personal property and an automobile, the total of which could add up to over $50,000. The spouse is also given preference to be the Administrator of the deceased spouse’s estate–i.e., the spouse is in charge of administering the estate. If a spouse dies leaving a will, then regardless of it’s terms, the surviving spouse is entitled, essentially, to one-third (1/3) of the entire state, which is defined to include most assets which are not part of the probate estate, i.e., they have listed beneficiaries, and also gifts which are made within three years of death.
Second marriages create special issues for estate planning. In the absence of a prenuptial agreement, the new spouse is entitled to the aforementioned inheritance rights, which will result in the decedent’s children from a first marriage not inheriting the entire estate, and in some instances inheriting less than half of the assets, even if the decedent was married for a short time.
Especially if one has children from a prior marriage, it is important to consider entering into a prenuptial agreement, so that the children are not left to inherit a smaller portion of the estate. Of course, a prenuptial agreement will also serve the purpose of protecting one’s assets in the event of a divorce, especially if one goes into a second marriage with substantial assets. Of course, a prenuptial agreement does not need to be adversarial and in many instances can be prepared by an estate planning attorney. If properly done, it can serve to protect all children of prior marriages.
* * * * * *