What is a spouse’s right to inherit life insurance proceeds?

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What is a spouse’s right to inherit life insurance proceeds?

Would my new spouse have the right to inherit any of my life insurance proceeds? I’m planning to prepare a Will that will leave my spouse about 25% of my property (bonds, stock, etc.) but I also have large life insurance policies that I want to leave to my children from my first marriage. Does my wife have the right to elect against my Will and take any of the proceeds? Would it matter if I had a Will or not?

Asked on April 19, 2011 under Estate Planning, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

In most state, including NY, an individual does not have the unqualified right to disinherit their spouse.  The law provides that, regardless of the provisions of an individual's Will, an individual's surviving spouse has the right to "elect" to take up to 1/3 of the estate outright (however, if this right is exercised, any interest of the electing spouse under the decedent's Will is extinguished).  The election is made against assets passing by Will and by "testamentary substitutes" (e.g. joint property, in-trust-for accounts, revocable trusts, etc).  However life insurance proceeds are not deemed to be a testamentary substitute, therefore a spouse has no right of election against them.


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