The Facts: I was married for 20 years and have two sons ages 19 and 13. I am now divorced and my ex-husband has remarried. Despite the settlement papers we signed in connection with our divorce, my ex never paid child support or contributed to my sons’ education expenses and has not been part of my sons’ lives for some time. I just learned that my ex is receiving hospice care.
The Question: When their father dies, will my sons be entitled to a portion of his estate or will it all pass to his second wife?
The Answer: The answer to that question depends on whether your ex has a Will at the time of his death.
If your ex dies with a Will, whether or not your sons inherit will be governed by the terms of the Will. In New York, you cannot disinherit your spouse but, you can disinherit your children. This is usually done by including in your Will a provision that states that you are not making a bequest for or otherwise providing for a specific child or children. However, even without this language, if your sons are not identified as beneficiaries in the Will, they will not share in his probate estate. Of course, if your ex named your sons as beneficiaries on a life insurance policy or a retirement plan, or they are named as joint holders on an account or deed, your sons will be beneficiaries of your ex’s non-probate estate.
As mentioned above, if your ex dies without a Will and he owns any assets individually (i.e.: not jointly with his new spouse or some other person), the intestacy statute will govern how those assets are distributed. Under the statute, the distributions made to each beneficiary are calculated after deducting from the gross estate all debts, administration expenses and funeral expenses, and removing from the available assets any assets that automatically pass to the decedent’s spouse and minor children. For purposes of the statute, both of your sons are minors and are entitled to a share of the assets that are exempt for the benefit of your ex’s family. Exempt property includes, among other things, a car with a value of up to $25,000, household furnishings with a value up to $20,000 and up to $25,000 in cash. In addition to a share of the exempt property, your sons will be entitled to a share of your ex’s non-exempt assets provided the value of the assets available for distribution exceeds $50,000.
Under the intestacy statute, your ex’s new spouse is entitled to a share of the exempt property, an additional $50,000 and ½ of the balance of your ex’s probate estate. Assuming your sons are your ex’s only children, as mentioned above, they are entitled to a share of the exempt property plus the other ½ of their father’s estate.
Regardless of whether your ex dies with or without a Will, your sons, by virtue of the fact that they are your ex’s children, should receive notice of any proceeding commenced in connection with the administration of your ex’s estate.
This article first appeared in the January 12, 2012 issue of the Times Beacon Record Newspapers.
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.