It is sometimes the case that when a person writes a will for themselves, they do not include their spouse as a beneficiary. Sometimes this is because of troubles in the marriage. Sometimes it is because the spouse is being taken care of some other way and doesn’t. It’s also possible that the spouse was not purposefully disinherited, but rather the will was created before the marriage occurs. As a general rule, you are not allowed to disinherit your spouse. In New York and New Jersey, a spouse is given a spousal election that entitles them to either accept the terms in the will, or choose to set the terms of the will aside and instead receive a portion of the estate defined by state law.
Let’s start with a will that was written before the marriage took place. In this case, the spouse is called pretermitted. In New York, the pretermitted spouse is able to take the elective share as if they were disinherited. In New Jersey, the pretermitted spouse is entitled to a share of the estate equal to the amount they would receive if the testator died without a will.
In the case of not including a spouse in your will because they are taken care of elsewhere, there are different rules and options. If your spouse agrees with the distribution that you have chosen, then your spouse can simply choose not to make the election. This option is not guaranteed as your spouse would not be required to not make the election when the time comes. You and your spouse can make an agreement, written in a way that would make the agreement recordable by a county clerk, in which your spouse waives some or all of their inheritance rights. Similarly, this type of agreement can be made as part of a prenuptial agreement. Even without an agreement, the way that the spousal election is calculated allows you to leave your spouse out of your will if they receive some of your estate’s assets in a different way. The reason for this is that when calculating the minimum amount your spouse is entitled to, testamentary substitutes are included when calculating the size of the estate. Generally speaking, testamentary substitute are assets transferred outside of the will. A few examples are gifts made in anticipation of death, gifts made within one year of death, jointly held bank accounts and property as well as certain trusts. Life insurance is notably not a testamentary substitute, and can be used to reduce the value of your estate.
If you are disinheriting because of troubles in the marriage, steps taken to end the marriage will end all inheritance rights. A signed divorce decree or a signed separation agreement is sufficient to end the right to spousal election. Abandonment can also end a spouse’s right to not be disinherited, but this is not automatic, and will have to be decided by the probate court.
Under the spousal right of election, the elective share is:
In NY, a spouse is entitled to the greater of $50,000 or one-third of the adjusted estate.
In NJ, the spouses elective share is one-third of the augmented estate.