When there is a remarriage and a desire to leave most of the estate to the children from a prior marriage, the spousal elective share should be addressed. A spouse may not be disinherited and is entitled to a “spousal elective share” of an estate, unless there is a valid waiver of that right. When there is a will, it is the greater of $50,000 or the capital value of decedent’s net estate if it is less than $50,000, or one-third of the decedent’s net estate. (In addition to this share, there are New York law provisions that provide the surviving spouse limited specific property that is deemed to be "outside" of the estate).
Certain lifetime transactions specified by the statute are included in the net estate. One example is gifts made within one year of death. The value of those gifts is included in the net estate. In an estate with multiple assets and transactions during lifetime, determination of the net estate can become complicated. This is illustrated by the case of a joint bank account with both spouses’ name on it. As a joint owner, the surviving spouse gets to keep the joint bank account. However, fifty percent of that account is considered as an interest that passed directly from the decedent to the surviving spouse. It is subtracted from the spouse’s net elective share.
A written waiver of the spousal elective share signed and acknowledged by the spouse can waive the right. The waiver can be signed and acknowledged before the marriage in a prenuptial agreement, during the marriage, or after the marriage. It should be part of an overall estate plan, including a will or a trust as needed. If the surviving spouse challenges the waiver , the court will scrutinize the waiver to ensure it was not obtained through undue and unfair advantage exercised by one spouse over the other. A waiver should be prepared in a way to ensure the process is fair.#