Death & the Importance of Marriage in New York


So your significant other has passed away. The question is: will you be left out in the cold? Is there any inheritance for you? The answer hinges upon whether your partner had a will or not, and upon your legal relationship to the deceased.

Whether or not your partner had a will, you are infinitely better off, financially, if you were legally married to the departed one.

If you have a marriage certificate and your spouse had no will, you are entitled to the entire estate—if no children are involved. If your spouse had children, then your share is $50,000 plus one half of the estate.

If on the other hand your legal spouse had a will, let us hope that he/she left something for you. However even if your partner left nothing for you in the will, as a married person you are still entitled to $50,000 or one third of the estate (whichever is greater). This is known as the spouse’s elective share.

Sadly, if you were not married to the deceased and there was no will, then you are generally not entitled to any part of your beloved’s estate.

However, there may still be some hope for you. Your significant other may have set up trusts for your benefit. You are in luck then. These assets will most likely pass to you. But, before you begin to breathe easier, you had better make sure that your loved one was not legally married to another person. He or she may step out of the woodwork and contest. A forgotten spouse may be able to undo your gains by claiming the elective share. Even if your partner’s will left the entire estate to you, the estranged spouse’s elective share works against you.*

Your dire situation could be alleviated if your departed loved one had the foresight to make you the beneficiary of a life insurance policy. In this case you are entitled to the entire proceeds whether or not there is a will or whether or not your lover was legally married to another. If however there is no will, no trusts, and no life insurance policy, you as the unmarried lover will really be left out in the cold.

So is it better to get married? You may have had good reasons why you never married your lover. You may have wanted to live like a hippy, or you were against the institution of marriage, or you just found any formality stifling. Perhaps you and your partner just never got around to it, or both of you were not materialistic and did not care about mundane things like wills, estates, and inheritance, or possibly you just thought that neither of you would ever die.

Nevertheless, the moral of this story is, if you want to avoid being kept out of the picture, you better obtain that marriage license before you are stuck in a sticky situation.

* Generally assets in a trust are outside of the estate. However in the case of the elective share, trust assets are included in the estate. As a consequence some or all of trust assets may be part of the spouse’s elective share.

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© 2016 Calman Greenberg Attorney at Law. All Rights reserved.


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