Related Practice Areas
- Business Transition Planning
- Estate and Trust Administration
- Estate Mediation and Alternate Dispute Resolution
- Estate Planning
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- Retirement Benefit Planning
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- The Role of Charity in Your Estate Plan
- Trusts and Estates
- Will, Trust, and Estate Litigation
As a result of our extensive estate planning experience, we have represented and continue to represent clients in the negotiation and preparation of pre-nuptial and/or post-nuptial agreements taking into account both spousal rights and taxation of property interests passing from one party to the other. Such agreements free the spouses from the otherwise applicable law conferring on a surviving spouse the right to one-third of the estate of a deceased spouse. They are also utilized in some cases to provide for the disposition of assets on the termination of a marriage.
Marital agreements can provide certainty for the treatment of inherited or business assets, even in the case of a first marriage. They are even more important where one or both spouses have been married previously and have children by the prior marriage.
Questions you should be asking:
- Is it permissible to disinherit a spouse in New York?
- Does New York recognize common law marriage?
- What is the “elective share” and how does that affect my estate plan?
A case in point
There has been a steady trickle of cases involving the effect of marital agreements, involving whether they are indeed effective to bar the application of New York law giving the surviving spouse a “right of election” to 1/3 of the deceased spouse’s estate. Good lawyering can generally avoid such litigation by making sure that each spouse is separately represented by counsel and that each is made fairly aware of the nature and extent of the assets and financial prospects of the other.