Law Office of Jason D Jones, P.C.

FAQs Estate Waivers and Agreements

FAQs- Estate Waivers and Agreements

I am a divorced spouse who was referenced in my ex-spouse's Will.  Am I entitled to inherit anything under this Will?

  • No, in New York a divorce decree voids all dispositions, unless the Will provides otherwise.  On the other hand, if you are the ex-spouse who is concerned about having your ex-spouse referenced in your Will, or if you remarry, it is best to just execute a fresh Will. 

I signed a premarital agreement but am convinced that it is unfair for various reasons.  What should I do?

  • Even if you have signed a premarital agreement, it may be overturned in the event that the Surrogate's Court finds it to be blatantly unfair due to one spouse's increase in assets or if one spouse was not fairly represented by counsel when he or she signed the premarital agreement. 

I don't have a premarital agreement but I would like to put one in place so that I do not need to collect from my spouse's estate.  May I do so?

You may execute a waiver to collect your right of election.  The waiver must be in writing and acknowledged like a deed.  

Must I give up anything in order to execute a waiver?

No you do not have to negotiate anything to execute a waiver. 

Is there a time period into which I must contest a waiver in New York?

  • There is a six month statute of limitations from the execution of a waiver where you may contest it.

I waived my interest in my spouse's estate but wish to object to the probate of my spouse's Will.  May I do so?

  • No, you may not. 

What happens if I have entered into a valid Separation Agreement in New York where my spouse and I have waived our right of election to the other's estate but my spouse has died prior to specifically waiving his bequests to me under his Will?  

  • If one spouse dies prior to obtaining a divorce decree without changing the Will provisions in favor of the surviving spouse, then those Will provisions will be valid.

I wish to petition the Surrogate's Court to claim my full elective share.  What are my options and how long do I have to exercise them?

  • If you are a spouse who thinks that you did not receive your full elective share, under New York inheritance laws, you may file a "spousal right of election" with the Surrogate's Court.  Barring extraordinary circumstances, you have six months from the appointment of an executor or administrator to file.