A New York spouse who is legally married to a decedent at the time of his or her death has a right to inherit an “elective” share of the assets. If the decedent dies without a will and without children, the surviving spouse is entitled to the entire estate. If there is no will but there are surviving children, the surviving spouse is entitled to the first $50,000 in assets and one-half of the remainder of the estate.
According to NY Estates Powers Trust Law (“EPTL “) 5-1.2, a husband or wife is a “surviving spouse”, unless it is established satisfactorily to the court that:
(1) A final decree or judgment of divorce, of annulment or declaring the nullity of a marriage or dissolving such marriage on the ground of absence, recognized as valid under the law of this state, was in effect when the deceased spouse died.
(2) The marriage was void as incestuous, bigamous, or a prohibited remarriage.
(3) The spouse had procured outside of this state a final decree or judgment of divorce from the deceased spouse, of annulment or declaring the nullity of the marriage with the deceased spouse or dissolving such marriage on the ground of absence, not recognized as valid under the law of this state.
(4) A final decree or judgment of separation, recognized as valid under the law of this state, was rendered against the spouse, and such decree or judgment was in effect when the deceased spouse died.
(5) The spouse abandoned the deceased spouse, and such abandonment continued until the time of death.
(6) A spouse who, having the duty to support the other spouse, failed or refused to provide for such spouse though he or she had the means or ability to do so, unless such marital duty was resumed and continued until the death of the spouse having the need of support.
“Abandonment” under EPTL references NY Domestic Relations Law. The statutory language of the EPTL does not define “abandonment” for the purpose of determining if a surviving spouse is disqualified as an heir. However, “historically, the courts have recognized the requirements of the Domestic Relations Law as implicit in the EPTL. That is, ‘[t]he standard used to determine if a surviving spouse abandoned the decedent is the same standard used to determine whether the party would have been entitled to a decree of separation [or divorce] on grounds of abandonment.’” Matter of Hama, 39 Misc. 3d 429, 435 (N.Y. Sur. Ct. 2012).
Abandonment” Requirements for NY Divorce or Separation
“To constitute abandonment under [the statute] something more is necessary than a departure from the marital abode or a living apart … To amount to abandonment, the departure of a spouse from the marital home must be unjustified and without the consent of the other spouse.” Id. (quoting Matter of Maiden, 284 NY 429, 432, 431 (N.Y. 1940). In sum, “in order to attain a determination that a surviving spouse has forfeited the right … to participate in the intestate inheritance of his estate … by reason of alleged abandonment, those contending for such a result must demonstrate, first, that departure from the other spouse actually occurred; and second, that it was without the consent of the one left behind.” The statutory minimum time for abandonment is stated in Domestic Relations Law 170(2). A person may be eligible for a divorce if abandoned by their spouse for more than one year.
Elements of abandonment include:
- A voluntary separation of one spouse from the other;
- An intent not to resume cohabitation;
- Lack of consent of the other spouse; and
- No justification.