Estate Planning, Legal Separation and Inheritance

The Facts: My husband and I agreed to separate over 20 years ago. Since neither of us wanted to remarry, we never filed for a divorce. In my Will my estate is divided equally between my current partner and my son.

The Question: I was told that my husband may have a claim against my estate when I die. Is that correct?

The Answer: Unfortunately for you, you are still married in the eyes of the law and your husband may claim up to 1/3 of your estate despite the provisions in your Will. If your husband predeceases you, you can likewise claim up to 1/3 of his estate.

Under New York law you cannot effectively disinherit a spouse. Despite the length of your separation, your marriage is legally intact. Upon you death, your spouse may choose to exercise his statutory “right of election.” If he does, he is entitled to receive 1/3 of the value of your estate. For purposes of calculating the value of your husband’s “elective” share of your estate, the value of everything you own may be taken into consideration, including but not limited to bank accounts, brokerage accounts, real estate, death benefits, your interests in property that you own jointly with others, pensions, assets held in trust and tangible personal property. If you husband can show that your marriage was never legally dissolved and that he is not otherwise disqualified from exercising his right of election, his 1/3 share will be paid out of your estate before the provisions of your Will take effect.

Short of obtaining a divorce, the only way to be sure that your husband cannot exercise his right of election is to have him sign an agreement in which he waives all rights to your property and all rights in your estate. If you opt for an agreement, be sure to consult an attorney to insure that the agreement is properly written and executed.

Linda M. Toga, Esq. provides personalized service and peace of mind to her clients in the areas of estate planning, real estate, marital agreements and litigation. Visit her website at or call 631-444-5605 to schedule a free consultation.

This article first appeared in the February 18, 2010 issue of the Times Beacon 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.