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inheritance

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: I will be getting married soon. It is a second marriage for both me and Mary. We both have children from our prior marriages. 

THE QUESTION: Is there something I can have Mary sign to ensure that my assets will pass to my children when I die? 

THE ANSWER: If you are only worried about what happens to your assets when you die, you can ask Mary to sign a waiver of her right of election. As long as you have kept your assets separate from Mary’s as opposed to comingling your assets in joint accounts or investing your assets in jointly held property, a waiver should be adequate. 

Under the law, regardless of how assets are held or the wishes memorialized in a will, trust or beneficiary designation form, a surviving spouse is entitled to one-third of his/her deceased spouse’s assets. This entitlement is known as the surviving spouse’s right of election. The types of assets that are subject to the right of election are set forth in Estates, Powers and Trusts Law Article 5. 

Pursuant to Article 5, a surviving spouse’s elective share may include assets owned by the decedent individually but also assets that the decedent owned jointly with others and assets held in retirement and pension plans, to name a few. 

A surviving spouse must exercise his/her right of election within six months of the issuance by the Surrogate’s Court letters testamentary or letters of administration. Although spouses who voluntarily agree to live apart can still exercise their right of election, a spouse who is found to have “abandoned” a decedent is barred from claiming an elective share. 

In order for Mary to waive her right of election, she must sign a document that states that she waives her right of election and all claims against your estate. The waiver must be signed by Mary in the presence of a notary. Of course, if, after Mary signs a waiver, you choose to leave assets to Mary in your will, you can certainly do so. The waiver does not prevent Mary from being a beneficiary of your estate. It simply prevents her from demanding more than you may voluntarily allocate to her.

 It is important to note that a waiver only addresses Mary’s rights to your assets after your death. If you are concerned about what may happen to assets in the event of a divorce, you should discuss with an experienced attorney your options in terms of a pre- or postnuptial agreement. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: When I was 3, my parents adopted a baby and named her Mary. My mother died seven years later and my father remarried. My father and his second wife had two children together. My father recently died without a will. My half-siblings insist that since Mary is not my father’s biological child, she is not entitled to a share of his estate. 

THE QUESTION: Are they correct? 

THE ANSWER: Fortunately for Mary, your half-siblings are wrong. 

HOW IT WORKS: If your father legally adopted Mary, she has the same right to a share of your father’s estate as you and your father’s other biological children. The law in New York is quite clear on that point. 

Section 7(c) of the New York intestacy statute governs how an estate is distributed when someone dies without a will. It states that “the right of an adopted child to take a distributive share … continue[s] as provided in the domestic relations law.” 

Domestic Relations Law Section 117 explicitly states that “[t]he adoptive parents or parent and the adoptive child shall sustain toward each other the legal relation of parent and child and shall have all the rights and be subject to all the duties of that relation including the rights of inheritance from and through each other …”

In other words, the relationship between Mary and your father is legally the same as the relationship between you and your father and the relationship between your half-siblings and your father. As such, she is entitled to the same percentage of his estate as any of his biological children. 

In addition, if Mary had predeceased your father and had children of her own, her children would be entitled to share the inheritance that would have otherwise passed to Mary. 

It is worth noting that Domestic Relations Law Section 117 not only sets forth the rights of the adoptive child but also the rights of the adoptive parent. If Mary had predeceased your father without a spouse or children of her own, your father, as her adoptive parent, would be entitled to her entire estate. 

If you are going to be petitioning the Surrogate’s Court for letters of administration so you can handle your father’s estate, you should consult with an experienced estate attorney to ensure that the administration process is handled properly and proceeds smoothly despite the position taken by your half-siblings.   

Linda M. Toga, Esq. provides legal services in the areas of estate planning, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

There are planning tools an individual can employ to potentially safeguard wishes after death. Stock photo

By Nancy Burner, Esq.

Nancy Burner, Esq.

Inheritance is the practice of passing on property upon someone’s death. The rules of inheritance differ from state to state.  

In New York, a decedent generally cannot disinherit his spouse. This principle is governed by Estates, Powers and Trusts Law Section 5-1.1-A (Right of Election by Surviving Spouse) and requires that the surviving spouse receive a portion, or share, of the decedent’s estate. The surviving spouse’s share will be equal to the greater of $50,000 or one-third of the decedent’s estate.

The right to elect to take your spousal right of election is governed by time frames. An election under this section must be made within six months from the date letters testamentary are issued but no later than two years after the date of the decedent`s death. A written notice of the election is required to be served upon the executor, or upon the person named as executor in the will if the will has not yet been admitted to probate. The written notice must then be filed and recorded with the Surrogate`s Court.  

Conversely, a decedent can disinherit a child. However, it is important to note that a child falls into a certain class of individuals who have the right to contest your will even if they are specifically disinherited, whether or not they are named as a beneficiary under your will or if they were left with a disproportionate share of your estate. A disinherited child has the right to challenge or contest your will because, had you died without a will, your child would receive a share of your estate through the laws of intestacy.  

However, there are planning tools an individual can employ to potentially safeguard wishes after death. An in terrorem provision in a decedent’s will “threatens” that if a beneficiary challenges the will then the challenging beneficiary will be disinherited instead of inheriting the full gift provided for in the will. An in terrorem clause is intended to discourage beneficiaries from contesting the will after the testator’s death. New York law recognizes in terrorem clauses, however, they are strictly construed.   

Keep in mind that simply having an in terrorem clause in your will may not be enough to dissuade beneficiaries from potentially challenging your will. Theoretically, however, for an in terrorem clause to have any weight at all, a beneficiary under a will must be left a substantial amount to incentivize their compliance with the will. 

An in terrorem clause may have no effect on a beneficiary who was not left anything under a will as they risk losing nothing by challenging the will. While in terrorem clauses may be effective in minimizing a will contest, for some it holds no power.  

As with many things in life, one size does not fit all. A successful estate plan takes all personal and unique factors to an individual into consideration. The documents are only part of the problem and solution. The fact is, there is no substitute for competent legal advice.   

Nancy Burner, Esq. practices elder law and estate planning from her East Setauket office.

When a person dies without a will, the law determines who the heirs of the estate are. Stock photo

By Linda M. Toga, Esq.

Linda Toga

THE FACTS: After my mother’s death I was approached by a man I will refer to as Joe who claims that my mother was his biological mother as well. According to Joe, before she and my father married, my mother gave birth to Joe and immediately put him up for adoption. Although Joe admits that my mother rejected his attempts to develop a relationship with her during her lifetime, Joe now claims that since my mother died without a will, he is entitled to a share of my mother’s estate.

THE QUESTION: Is Joe correct? Will my siblings and I have to share our inheritance with him?

THE ANSWER: Fortunately for you, Joe is wrong.

HOW IT WORKS: Generally a child who is adopted out does not have the right to an inheritance from the estate of his birth mother. The order of adoption generally relieves the birth parents of all parental duties and of all responsibilities for the adopted child. At the same time, the order extinguishes all parental rights of the birth parent to the estate of a child who has been adopted, including the right to serve as administrator of that child’s estate and the right to inherit under the intestacy statutes.

Although Joe seems to be relying upon the fact that your mother died without a will and, therefore, did not explicitly disinherit him, his reliance is unwarranted. That is because the New York State intestacy statute and the domestic relations law govern how your mother’s estate should be distributed.

While the child of a decedent is generally entitled to a share of his parent’s estate if the parent dies without a will [Estates, Powers and Trusts Law §4-1.1 (a)(1) and (3)], the rights of an adopted child in the estate of a birth parent are governed by subsection (d) of the statute. It provides that the Domestic Relations Law, specifically Domestic Relations Law §117, controls.

Domestic Relations Law §117 (1)(a) and (b) provide that an order of adoption relieves the birth parent of all parental duties and responsibilities and extinguishes any rights the parent would otherwise have over the adoptive child’s property or estate. At the same time, the order terminates any rights of the adoptive child to an inheritance from the birth parent.

Although there are some exceptions to these laws, the logic behind terminating inheritance rights is to prevent people in Joe’s position from enjoying a windfall by inheriting from both his birth and adoptive parents and to prevent a birth mother from receiving an inheritance from a child that she did not support during her lifetime.

Under the circumstances, the only way Joe could inherit from your mother’s estate would be if she chose to name him as a beneficiary in a will or a trust or on a beneficiary designation form. If Joe decides to pursue a claim against your mother’s estate, you should be able to defeat the claim by providing the court with evidence that Joe was legally adopted as a child.

It would be wise to retain an attorney experienced in estate administration to assist you with this matter.

Linda M. Toga provides personalized service and peace of mind to her clients in the areas of elder law, estate administration and estate planning, real estate, marital agreements and litigation. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

By Linda Toga

The Facts: My father married a woman named Jane after my mother’s death. They were married for 10 years before my father died. In his will, my father left everything except the contents of his house to me and my sister.

The Question: Is it true that Jane is entitled to a larger share of my father’s estate than what he left her in his will?

The Answer: Unfortunately for you and your sister, because she is your father’s surviving spouse, Jane is entitled to more than the contents of the house. Under New York law, spouses cannot disinherit each other. Although your father left something to Jane and did not technically disinherit her, the value of the contents of the house likely make up a very small percentage of the value of your father’s estate.

Assuming Jane wants more than what is left to her in the will, and assuming she did not waive her rights in a pre- or postnuptial agreement, Jane may ask the Surrogate’s Court to award her approximately one-third of the net value of your father’s entire estate, regardless of the terms of his will. If someone is legally married at the time of their death, their spouse can exercise what is called a “right of election.” This means that the surviving spouse can elect to receive a share of the decedent’s estate valued at approximately one-third of all of the assets of the deceased spouse. Under the facts you provided, Jane can elect to receive not only one-third of the net value of your father’s testamentary assets passing under his will (assets that were owned outright by your father in his individual capacity) but also one-third of the net value of your father’s nontestamentary assets.

Such assets are sometimes referred to as testamentary substitutes and include, among other things, gifts made by a decedent in contemplation of death, jointly held real property, accounts in a decedent’s name that were held in trust for another person or designated as transfer on death accounts, assets held in trust for the benefit of another, assets payable under retirement plans, pensions, profit sharing and deferred compensation plans and death benefits under a life insurance policy. Since the assets a decedent owned jointly with others and/or held for the benefit of others are considered when calculating the value of a surviving spouse’s elective share, the beneficiaries under the will are not the only people who may be adversely impacted when a surviving spouse successfully exercises his/her right of election.

This is just one of the reasons an election is often the first step in what can be a contentious and protracted litigation. The right of election is personal to the surviving spouse; but, if the surviving spouse is unable to make the election, a guardian or guardian ad litem appointed by the court to represent the interests of the surviving spouse may make the election on the spouse’s behalf. The surviving spouse must exercise the right of election within six months of the issuance of letters testamentary and in no event later than two years after the decedent’s death.

To prevent the distribution of assets that may ultimately be determined to be part of the elective share payable to the surviving spouse, notice of the election must be served upon all people and entities that are in possession of or have control over the decedent’s assets. The executor administering an estate where the right of election has been exercised may be able to disqualify the person who made the election from receiving the elective share. To do so the executor must prove that the person attempting to collect an elective share was not actually married to the decedent at the time of death.

If there is no question that the person seeking an elective is the surviving spouse, the executor may be able to defeat the election by establishing that the spouse had the means but refused to support the decedent prior to death, that the spouse abandoned the decedent prior to death or that the marriage was void as incestuous or bigamous. Although the outcome of all litigation is uncertain, because of the issues raised in litigation involving the right of election, it can be particularly emotional and disturbing. As such, it is best to consult an attorney with experience in estate litigation and specifically with cases involving a claim for an elective share.

Linda M. Toga, Esq. provides legal services in the areas of estate administration and planning, real estate and litigation from her East Setauket office.