I have come across more divorces that have involved couples who have lived apart for decades. Many of these individuals come to me and ask what happens if I do not file for divorce, can I will my children everything I have?
Under New York state law, whether a spouse dies with or without a will, a spouse is entitled to the elective share of his or her spouse’s estate. This elective is one-third of the spouse’s assets!
The assets included in the elective share are all items that pass through a will. It also includes, pursuant to New York Estates Power and Trust Law Section 5-1.1.d, “testamentary substitutes…which include gifts causa mortis or within one year of death, Totten trusts, joint accounts, revocable transfers, or transfers with a retained income interest, many retirement accounts and property owned by a decedent and payable on his death to someone other than the surviving spouse for his estate.”
The right of election gives the surviving spouse the choice between accepting what he or she received in a will or under intestacy, or the greater of $50,000 or one-third of the estate. Needless to say, if you are a spouse who has been living separate from your husband or wife and have assets sitting back and doing nothing can be harmful to your intentions for your estate after you pass.
A divorce in New York will terminate the right of election and protect your right to transfer your estate the way you wish.
If you are in the Poughkeepsie, NY are and are seeking a divorce lawyer in Dutchess county. Please contact MacKay and Berube law for your free consultation.