New York Probate Appeal: Does separation eliminate a spouse’s right to an elective share in West Palm Beach?
Do you know what the elective share is? If your spouse has disinherited you from the estate plan then you may still be able to petition the court for thirty percent of the elective estate. A recent appellate decision in New York raises an interesting issue for West Palm Beach probate attorneys. Although it is well known that divorce cuts off one’s rights to an elective share what about separation?
Elective Shares in West Palm Beach
- The elective share in Florida allows a spouse to take thirty percent of the elective estate as a substitute to whatever they were left in the probate estate.
- In fact in Florida various non-probate assets are included in the calculation of theelective estate.
- Do you know how long you have to make an election for that share?
- The clock starts ticking when your spouse dies, you have only two years and this is shortened when notices of administration are filed
- In that case you may have as little as ninety days to file for the elective share.
Divorces and Estate Plans
- In West Palm Beach divorce invalidates any provisions in a will for the ex-spouse.
- In fact this law has been extended to various non-probate property like trusts and life insurance.
- Similarly an ex-spouse loses the right to an elective share.
- But what about a mere separation without any court interventions or dissolution?
- That is the issue in a recent case out of New York
In re Duplessis
- This was an appeal in a probate proceeding that was instituted by the decedent’s wife.
- The wife wanted to compel the executor of the will to give her an elective share pursuant to the New York probate code.
- The executor argued that the woman had abandoned the marriage and her husband as she had not lived with the husband at his death in 2010.
- In fact the woman left the marital home in 1987 and had not seen the husband intwenty-three years!
- On appeal it was held that the executor did not properly establish that the woman had abandoned the marriage under the New York statute.
- Do you agree?
- What would have happened in West Palm Beach?
Want to learn more about your rights to an elective share in West Palm Beach?
Check out the entire case by clicking here.