Can I disinherit my spouse or child in New York?
1. Spousal Disinheritance. New York is a separate-property state. Under N.Y. EPTL § 5-1.1-A, a surviving spouse is entitled to an elective share equal to the greater of $50,000 or one-third of the net estate, computed against the "net estate" which includes probate assets plus testamentary substitutes (Totten trusts, joint accounts, revocable transfers, gifts within one year, retirement accounts to the extent of contributions, etc.).
2. Augmented Estate. New York uses the term "net estate" rather than UPC "augmented estate," but the concept is similar — it pulls in non-probate transfers to prevent will-substitute avoidance. New York does not use the UPC sliding scale.
3. Elective Share Procedure. The surviving spouse must file the election within six months after issuance of letters testamentary or letters of administration, but no later than two years after the decedent's death (EPTL § 5-1.1-A(d)). The election is filed in Surrogate's Court with notice to the executor.
4. Pretermitted Child. Under N.Y. EPTL § 5-3.2, a child born after the execution of the will and not provided for by settlement receives a share equal to what they would have received if the testator died intestate (with adjustments depending on whether other children were provided for).
5. Intentional Disinheritance of Child. Adult and pre-execution children may be entirely disinherited; New York has no forced heirship for children.
6. Louisiana Forced Heirship. Does not apply in New York.
7. Prenuptial / Postnuptial Waiver. A spouse may waive elective share under EPTL § 5-1.1-A(e) by a written instrument signed and acknowledged. New York has adopted versions of the Uniform Premarital Agreement Act principles.
8. Homestead, Family Allowance, Exempt Property. Exempt property and "set-off" of personal property to the surviving spouse under EPTL § 5-3.1 (up to $92,500 in specified items) regardless of will terms.
9. Will Contest Grounds. Lack of capacity, undue influence, fraud, duress, or improper execution; objections filed in Surrogate's Court within the SCPA § 1404 framework.
This is legal information, not legal advice.
- You are a surviving spouse and the six-month elective-share deadline is approaching
- You want to disinherit a spouse and need a properly executed waiver
- You are contesting a will in Surrogate's Court
- N.Y. EPTL § 5-1.1-A
- N.Y. EPTL § 5-3.2
- N.Y. EPTL § 5-3.1
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.