I’ve met with a number of clients lately who have been separated from their spouses for many years but, who, for some reason, never obtained a divorce. All are under the impression that the long separation effectively cut off any rights their spouse may have to their estates. Unfortunately, they are mistaken.

In New York legally married individuals have the right to act as the administrator of their spouse’s estate and to take a percentage of that estate. Even if the deceased spouse has a Will which provides that their estate assets pass to others, the surviving spouse’s right of election overrides the provisions of the Will, as well as the provisions of some beneficiary designation forms and jointly held accounts.  Unless the couple is legally divorced, the spousal rights conferred through marriage remain intact despite decades of separation.

While the same reasons for not getting a divorce in the past may still apply, an individual who remains married only in the eyes of the law can protect him/herself by having their spouse sign a document in which the spouse waives all spousal rights. A properly drafted and executed waiver of spousal rights, similar to what is found in many pre-nuptial agreements, effectively prevents the surviving spouse from exercising his/her legal rights with respect to the estate of the deceased spouse. Absent a waiver or a divorce decree, there is nothing to prevent a surviving spouse from exercising the legal rights inherent in marriage.

 
Linda M. Toga of The Law Offices of Linda M. Toga, P.C. is an East Setauket, New York attorney with a general law practice focusing on estate planning, real estate, marital planning, small business services and litigation.