Most husbands and wives have Wills that include each other. Every once and a while, however, a spouse will die and the Will turns out to exclude his or her spouse. This could be for negative reasons such as revenge, anger, or abuse, or for such innocuous reasons such as a feeling that one’s spouse doesn’t need the bequest.
The law, however, protects the interests of the surviving spouse and creates an automatic bequest to the surviving spouse, called the elective share. The elective share statute provides that a surviving spouse who is cut out of a Will or who is given a small bequest in a Will can opt to receive one-third of the probate estate if there are children of the marriage, and one-half of the probate estate if there are no children of the marriage.
This elective share, though, can be of little solace to an excluded surviving spouse. Current estate planning can use numerous legal instruments to transfer property (such as trusts and Transfer on Death Beneficiaries) outside of the probate estate.
The case law on this issue is not clear-cut, but it does provide some hope for a surviving spouse who has been left out of the Will. The most significant recent case, Karsenty v. Schoukroun, involved a husband who transferred approximately $400,000 into a trust for his daughter, and left $20,000 in the probate estate. His wife was not left bereft, because she was the beneficiary on a $200,000 life insurance policy, a car, and some other death benefits. The court reviewed the preceding case law and ruled that if the deceased spouse made transfers of property before death that were “a mere sham” intended to cut out his or her spouse, then the property in those transfers will be included in the probate estate. However, bona fide, good faith transfers should not be included in the probate estate.
If a loved one dies, our estate planning lawyers can help you through the process.
