Sometimes, the older client’s question is posed in the starkest form: Am I better off getting a divorce or just waiting for my spouse to die? The smart lawyer’s answer is “It depends on a lot of variables.” This article will discuss some of those variables, and the different ways in which New York law, and, in passing, the Uniform Probate Code which other states have adopted, protect surviving spouses from disinheritance. It also notes the dissimilar status of offspring. The applicable law with respect to estate and divorce rights will be the law of the state in which the deceased spouse was domiciled at the time of his or her death, or where the parties reside, in the divorce scenario. As part of the “death gamble”, of course, there is always the risk that the monied spouse will transfer assets—fraudulently or otherwise—before the death, in such a manner as to place them beyond the reach of the provisions of the law designed to protect the surviving spouse (in New York, EPTL §5-1-1-A[b] and [c]). That possibility needs to be factored into the equation.
In New York, a surviving spouse’s elective share of the estate of a deceased spouse is the greater of $50,000 or one-third of the decedent’s net estate, as defined under 1990’s statutory reforms designed to protect surviving spouses. EPTL §5-1.1-A(a)(2). Under the prior law, the elective share was 50% of the decedent’s net estate if there were no living children of the decedent at the time of the decedent’s death, and one-third if the decedent left living children. But a spouse could choose to place the amount of the elective share in trust, with the surviving spouse receiving only the income therefrom during his/her lifetime—a deprivation and an insult. In addition, the surviving spouse today is entitled to take or retain possession of (and not count toward the elective share) certain personal property, ranging from the family bible to clothing and household items worth up to $20,000, and one motor vehicle worth up to $25,000. EPTL §5-3.1.
