I recently sat with a couple in their late 60s, a second marriage for both. He had built a successful business in Manhattan and wanted to leave the majority of it to his children from his first wife. His current wife, whom he loved dearly, had her own resources but he still wanted to ensure she was comfortable. “It’s my business, my legacy,” he said. “I get to decide where it goes, right?”
The answer is yes—but a qualified yes. His question gets to the heart of the fundamental rights every person in New York possesses over their estate. These are not abstract legal theories. They are the bedrock of how we transfer generational wealth, protect our families, and define what we leave behind. Understanding them is the first step toward intentional legacy planning.
Your Right to Direct Your Legacy
The most fundamental right is testamentary freedom—the right to choose your beneficiaries. This is your property, your life’s work. You have the authority to direct its future. Through a will or a trust, you name the people, charities, or institutions you wish to receive your assets. You can be specific, from gifting a family heirloom to a particular grandchild to establishing a trust that manages your wealth for generations.
This right is the engine of your entire plan. It allows you to provide for a child with special needs, reward a loyal employee, or support a cause you believe in. But this freedom is not absolute. It operates within a framework of legal obligations, particularly when it comes to a surviving spouse.
The Unbreakable Right of a Surviving Spouse
While you have the right to choose your heirs, New York law grants a powerful, competing right to your surviving spouse. You cannot completely disinherit your husband or wife. This is known as the “spousal right of election.”
Under Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse can claim an “elective share” of the deceased spouse’s estate. This share is the greater of $50,000 or one-third of the net estate. This right holds true even if your will leaves them a smaller amount or nothing at all. The law recognizes marriage as an economic partnership, and this statute prevents a spouse from being left destitute.
For my client with the business, this was a critical piece of the puzzle. We could not simply write his wife out of the will regarding his business assets. Instead, we had to structure a plan that satisfied her elective share while still achieving his primary goal of passing the company to his children. It required deliberate planning—not a denial of his wife’s rights, but a prudent acknowledgment of them.
The Right to Appoint Your Steward
Who will carry out your wishes? Who will gather your assets, pay your final bills, and distribute the inheritance to your heirs? You have the right to name this person—your fiduciary. Whether it’s the Executor of your will or the Trustee of your trust, this is one of the most important decisions you will make.
If you fail to name a fiduciary, the Surrogate’s Court appoints one for you—and it may not be the person you would have chosen. By naming a trusted family member, a friend, or a corporate trustee, you place your legacy in the hands of a steward you believe has the integrity and competence to see your plan through. This isn’t just about administration; it’s about entrustment. Your chosen fiduciary has a legal duty—a fiduciary duty—to act in the best interests of the estate and its beneficiaries. Your right is to choose who bears that immense responsibility.
The Right to Maintain Your Family’s Privacy
When a will is submitted to the Surrogate’s Court for probate, it becomes a public record. Anyone can go to the courthouse and see the contents of your will, the nature of your assets, and the identities of your beneficiaries. For many families, particularly those with significant assets or complex dynamics, this public exposure is undesirable.
You have a right to privacy, and you can exercise it. A revocable living trust is a private document. It does not get filed with the court. Assets held in the trust pass to your beneficiaries according to its terms, outside of the public probate process. This keeps your financial affairs and family matters confidential. Choosing between a will-based plan and a trust-based plan is often a choice between public record and private administration.
For a private person, or for an estate plan that must address sensitive family issues, a trust is the primary tool to assert your right to keep those matters within the family.
Stewardship.
It’s the simple, guiding principle. An estate plan isn’t a static document; it’s the instruction manual you leave for the people you trust to manage the legacy you built. These rights give you the authority to write that manual with intention.
If you are re-evaluating your own estate plan, or creating one for the first time, start by considering these rights. They are the framework for the entire conversation. We can begin that conversation by scheduling a review of your current asset structure and beneficiary designations to see how they align with your long-term goals.
