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Disinheriting Your Spouse? Not So Easy in New York

We've discussed two cases recently that present one common issue: The right of an estranged spouse to inherit.

What happens when a spouse dies in the middle of a divorce? Or what happens if a couple is separated at the time of death and the will purports to leave everything to someone other than the spouse?

The answer to that lies in New York's right of election.

First off, we have the late Mary Richardson Kennedy. She's been in the news again this week, as the Westchester County medical examiner found traces of three anti-depressants in her system at the time of her suicide. She and her husband had been going through a bitter divorce, but the divorce was not final at the time of her death.

Second in the queue, we have the case of Thomas Kinkade and his illegible handwritten will. His will purports to leave his estate to his mistress of eighteen months, Amy Pinto-Walsh. But at the time of his death, he was still married to Nanette Kinkade, his wife of three decades.

So, what happens to the estranged wife under New York law?

The answer lies in New York's right of election. A surviving spouse has the right to the greater of $50,000 or one-third of the estate, if the couple has children. If the couple has no children, then the surviving spouse has the right to one half of the decedent spouse's estate or $50,000, whichever is greater.

Thomas Kinkade's wife won't benefit from New York's spousal right of election, but if we take the same facts and apply them to New York, the case could quite possibly be a slam-dunk for his wife. First off, we have the probable invalidity of a handwritten will in New York (barring certain circumstances). Then, we have the spouse's right of election. Of course, California does have community property rules, so it will be interesting to see how (and if) those work in Nanette Kinkade's favor.

Moving on to Mary Kennedy. We currently have no news on her will or estate plan, but what we do know is that she and RFK Jr. had not officially divorced. Divorce papers had been filed, but the divorce was not final. If RFK Jr. is written out of Mary Kennedy's will, then his spousal right of election is sure to become an issue in Surrogate's Court.

We'll be watching both of these cases closely as they unfold. Come back for updates.

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