It’s a question estate planning attorneys hear a lot. For whatever reason, a person desires not to leave any property to one or more of the natural objects of his or her affection. These could be a spouse, children, other family or even a partner.
The answer, with a couple of important exceptions, is no. You are free to leave (or not leave) any or all of your estate to anyone you want. The exceptions are for surviving spouses, minor children and, possibly what are known as pretermitted heirs. This shows how writing a will has just enough quirks to warrant an attorney’s help.
Spouses: unless there’s a premarital agreement, in New York, a surviving spouse can elect a statutory share of a deceased spouse’s estate. Similarly, New York state laws account for children in the intestate distribution. Finally, a forgotten, unknown or unmentioned child may also have a claim to part of the estate.
Usually, spouses leave their estate or the largest part of their estate to each other. That seems simple enough, but sometimes the spouse in question is not easily identified. In order to be certain, the spouse is usually specifically identified by language like “I leave my estate to my wife, Mary Jane.” This way there is no confusion as to who the decedent was talking about.
A pretermitted heir is simply an heir that is omitted from a person’s will. So a pretermitted spouse is a spouse who has been omitted from a person’s will. If there is a question as to whether the marriage was valid, then there could also be a question as to whether the will is effective to allow the spouse to take his or her portion of the estate under the will.
Using a Trust to Provide for a Spouse and Heirs
Sometimes a person would like to provide for a spouse and also provide for other heirs in their will. One way to do this is to establish a trust within the will to hold the estate property for the benefit of the surviving spouse, and to then pass some or all of the trust property to the other heirs when the spouse later dies. Often, the terms of the trust establish that the surviving spouse will receive income until death or until the passing of some event. This way, the surviving spouse may qualify for the federal estate tax exemption given to a surviving spouse, and the estate property is safeguarded for other heirs.
It may sound like a rare event that the validity of a marriage will be challenged, but sometimes a divorce or annulment was invalid and a subsequent marriage may therefore be invalid. Also, if a marriage is terminated, that may raise questions as to will interpretation.
One thing that courts take into consideration is whether the will was made based on the person’s specific belief that the marriage was valid, or whether the person wished to leave his or her estate to the person he or she described as his spouse. In addition, marital status at time the person dies is important. If the marriage has terminated and the will language identifies the spouse by status (“my spouse”) and by name, courts may be more likely to interpret the will to only intend to leave estate property to the spouse if the person dies while still married. In New York, it’s as if the spouse has pre-deceased if they are no longer married when the person dies. Be advised though, this works only in a Will, not in a trust.
Providing for a Spouse outside of Your Will
Spouses sometimes make provisions for their spouses in ways other than leaving estate property to the spouse upon death. Couples sometimes establish trusts such as revocable trusts to allow a spouse to receive the benefit of estate property while both spouses are still alive. Often, the beneficiary spouse under a trust is required to waive any pretermitted rights in order to ensure that the person’s will is interpreted to give effect to both the trust and the provisions for other heirs.
Of course, many families have children. There are many ways that children may enter a family. There are natural children born of the marriage, non-marital children, adopted children or children of only one or the other spouse. In a will, terms to describe children are often “descendants,” “issue” or “child.” It is possible for a will to be confusing or unclear as to who is included as a beneficiary in the distribution of estate property. For instance, were grandchildren to be included?
Omitting Children from a Will
As noted above, a pretermitted heir is an heir that is excluded from a person’s will. As a general rule, children are not protected from omission in a will to the extent that a spouse would be protected. This is because the law allows people to dispose of their estate property as they wish.
Rights of Children
New York has rules of intestate succession in order to provide for children. These statutes provide rules for distributing property where there is no will, or where an heir has been omitted, and generally apply to children unintentionally omitted. If a person wishes to omit a child, their attorney will often collect evidence of that intent in order to defend against a will challenge. This should be done with language in the will and documents supporting the intent to omit that child.
New York also provides for a child born or adopted after a will is made. Remember, methods of including or excluding a child include providing for that child in a manner different than in the will, and that also applies to adopted children. If the person making a will has at least one child, but leaves his or her entire estate to a spouse, generally this omission is allowed to stand. On the other hand, if the person making the will has another child after the will is made, that child will most likely be included in the distribution of the estate.
Sometimes, a person is not aware of a particular child, or thought that the child had died. Again, in that situation, the rules of intestate succession likely apply to that child at the expense of the other heirs.
Is this all very confusing? Probably. This is where the discussion turns to whether a person can, or should do his or her own will without the aid and advise of an estate planning attorney.