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What Happens if I Leave My Spouse Out of My Will?

For a variety of reasons, you may not want to leave your spouse anything from your estate when you die. For example, you might wish to give all of your property to your children or a charitable cause, and your spouse might have adequate assets of their own. A spouse is also sometimes omitted from a will unintentionally, such as when someone gets married after writing a will and dies before having a chance to change it.

Simply writing a will that does not give anything to your spouse is not sufficient to prevent the spouse from receiving anything. New York law gives surviving spouses — whether intentionally or inadvertently omitted — certain rights which cannot be overridden by a will that makes no gift to the spouse.

A valid pre- or post-marital agreement waiving all rights to receive any property from the estate of the other spouse is enforceable, although the spouse against whom it is to be enforced has the right to challenge that agreement after the other's death.

Otherwise, even a spouse completely and/or deliberately omitted from the will has some very substantial rights in the estate of the first spouse to die. The court will determine the net estate at death and give the surviving spouse:

  • One-half of the estate, if the deceased spouse is not survived by any children, grandchildren, or other direct descendants
  • One-third of the estate, if the deceased spouse left at least one or more children or other direct descendants

Even a spouse who receives a gift in the will, if the gift is smaller than this amount, may elect to take this share instead — therefore this entitlement is known as the elective share.

The net estate for this purpose includes all property owned by the first spouse to die at the time of death, along with certain other transfers of property made during life, which are added back in for purposes of calculating the spouse’s share. Some of the most important of these are:

  • Gifts made in contemplation of death (gifts causa mortis)
  • Money remaining in any savings accounts held by the dead spouse in trust for any other person
  • Money left over in any bank account that is designated “payable on death” to any other person
  • Any property held as joint tenancy with right of survivorship, or tenancy by the entirety (the second of these is necessarily with the surviving spouse)
  • Property in a revocable trust, or property in an irrevocable trust but one which gives the decedent a power to invade principal

It’s important to note that a spouse left out of a will has other rights in addition to those identified here. A New York estate planning attorney can advise you about how best to minimize what your spouse receives, if that is what you wish to do.

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