Excluding Spouse or Children from a New York Will

Disinheriting a spouse or child from a New York Will cannot be achieved by simply omitting them from the document. New York law gives protection particularly to spouses when an attempt is made to exclude him/her from a Will or if they are left only a nominal share.

This is why proper advice should be sought from a qualified attorney. A competent lawyer can provide you with clauses to use in your New York Last Will and Testament and guide you through any financial actions you need to take.

Exclude a Spouse

If you simply try to exclude your spouse from the Will or leave a minimal amount, your spouse may still be entitled to the following minimum entitlements under the legislation:

  • An elective share, being the greater of $50,000 or 1/3 of your net estate. If the capital value of your estate is less than $50,000, then your spouse is entitled to receive your whole estate. § 5-1.1-A
  • Exempt property such as all housekeeping appliances, utensils and instruments, a motor vehicle up to the value of $15,000 and money or other personal property up to $15,000 in value. § 5-3.1

Exclude Children

Children have fewer basic entitlements when disinherited from a New York Will. For example only if there is no spouse, your children under the age of 21 years are entitled to the exempt property as described above. § 5-3.1

Difficulty arises where a child is born after you’ve executed a New York Last Will and Testament without updating it. If the child is omitted from your Will, that after-born child may be entitled to a share of your estate unless it appears from your Will that the omission was intentional.  § 5-3.2

A Wills and estates attorney can help you with the correct wording when excluding a spouse or children from a New York Will. They can also advise if you should take other action such as setting up a trust or other financial arrangements.

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