There are certain things you can’t do in life. You can’t roller skate in a buffalo herd. You can’t spit into the wind . We all know you can’t take it with you . Unless you have a signed agreement in recordable form, you can’t disinherit your spouse.

While many schemers would like to leave all of their money to a girlfriend or boyfriend (depending, of course upon their personal predilections), persons dying as New York residents are subject to the terms of our state’s Estates Powers and Trusts Law (EPTL) which provides that spouses have basic rights of inheritance which cannot be ignored and which will survive being cut out of a will by an angry or disingenuous husband or wife.

This requirement can be circumvented only by a signed contract between spouses. Traditionally, pre-nuptial agreements provide for the parties to “contract-out” of the provisions of the EPTL as do separation agreements. Even though the entry of a judgment of divorce automatically disinherits each spouse from each other, that period of time between the date a final divorce settlement is inked and the papers are actually submitted to the court clerk, approved and signed by a judge can be agonizingly long and the parties should be protected by a provision in the agreement that each waives his or her right of election under the law.

In waiving inheritance rights from one’s spouse, very basic and important legal rights are being conceded. In order for such a waiver to stand up , both parties should be represented by independent competent counsel to insure that they did this while on a level legal playing field. Lawyers experienced in matrimonial law should be engaged to prepare and supervise such an agreement which should contain specific recitations as to just what rights are given up and which must be predicated upon the parties providing detailed disclosure of their personal assets to each other in order to insure its viability in the face of a challenge. The agreement must be written, signed and in recordable form. That means that it is not merely notarized but that the notaries who witness the parties’ signatures do so with a specifically-worded acknowledgement that would permit the document to be recorded by the county clerk just as we might record a deed or mortgage ( these marital documents are kept by the clerk in confidential files).

For those of you who are reading this long after midnight in your pajamas and would like to have a little help falling asleep, section 5-1.1-A of the New York EPTL appears below in all of its regal majesty. Sweet Dreams:

§ 5-1.1-A Right of election by surviving spouse

(a) Where a decedent dies on or after September first, nineteen hundred ninety-two and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent’s estate, subject to the following:

(1) For the purpose of this section, the decedent’s estate includes the capital value, as of the decedent’s death, of any property described in subparagraph (b)(1).

(2) The elective share, as used in this paragraph, is the pecuniary amount equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate. In computing the net estate, debts, administration expenses and reasonable funeral expenses shall be deducted, but all estate taxes shall be disregarded, except that nothing contained herein relieves the surviving spouse from contributing to all such taxes the amounts apportioned against him or her under 2-1.8.

(3) The term “testamentary provision”, as used in this paragraph, includes, in addition to dispositions made by the decedent’s will, distributions of property pursuant to 4-1.1 and any transaction described as a testamentary substitute in subparagraph (b)(1).

(4) The share of the testamentary provisions to which the surviving spouse is entitled hereunder (the “net elective share”) is his or her elective share, as defined in subparagraphs (1) and (2), reduced by the capital value of any interest which passes absolutely from the decedent to such spouse, or which would have passed absolutely from the decedent to such spouse but was renounced by the spouse, (i) by intestacy, (ii) by testamentary substitute as described in subparagraph (b)(1), or (iii) by disposition under the decedent’s last will.

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