A client once came to my office with her late husband’s will. He was a successful Manhattan entrepreneur who, after a late-in-life disagreement, had rewritten his will to leave his entire multimillion-dollar business to his partner. My client, his wife of thirty years, was left with almost nothing. She believed his signature on the document was the final word. It was not.
In my years of practice, I have seen that the most painful family conflicts often arise from what is not written in a will. Many people believe estate planning is simply about drafting a document that dictates who gets what. But New York law has its own ideas, creating a framework of rights and obligations that operate alongside—and sometimes in spite of—a person’s final wishes. These are not loopholes. They are foundational principles of fairness and protection embedded in our legal system.
The Surviving Spouse’s Right of Election
The most powerful of these unspoken rights is the spousal “right of election.” In the case of my client, her husband’s attempt to disinherit her was legally invalid. Under New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a right to an “elective share” of the deceased spouse’s estate, regardless of what the will says.
This share is defined as the greater of $50,000 or one-third of the net estate. The “net estate” is a broad concept that includes not only assets passing through the will but also certain non-probate assets like joint bank accounts or specific gifts made in the year before death. This is a deliberate public policy. The law recognizes the marital relationship as a partnership and prevents one spouse from leaving the other destitute, intentionally or otherwise.
This right is not automatic—it must be formally exercised within a strict timeframe, typically six months from the appointment of the executor. It is a critical contingency that every married individual should understand when creating a plan. An estate plan that fails to account for the spousal right of election is a plan with a built-in conflict.
The Beneficiary’s Right to an Accounting
Being named a beneficiary of a trust or an estate does not make you a passive bystander. You have a right to transparency. The person managing the assets—the executor or trustee—is a fiduciary. This is one of the most serious roles in our legal system, and it comes with a stringent duty of loyalty and prudence.
This duty gives beneficiaries the right to demand a formal accounting. An accounting is not a simple spreadsheet; it is a detailed, sworn statement of every dollar that has come into the estate or trust, every expense paid, every investment decision made, and every distribution proposed. It is the ultimate tool for holding a fiduciary accountable.
If an executor is being evasive, if a trustee’s decisions seem questionable, or if there are simply long periods of silence, a beneficiary can petition the Surrogate’s Court to compel an accounting. This right ensures that the decedent’s legacy is being managed with integrity. Stewardship is not a suggestion; it is a legal requirement.
The Right to Question a Will’s Validity
When a will seems fundamentally wrong—perhaps it dramatically departs from a lifetime of promises or was signed under suspicious circumstances—heirs have the right to challenge its validity. This is known as a will contest—and it is one of the most difficult proceedings in estate law.
The law presumes a will is valid. To overcome this, the challenger must prove grounds such as lack of testamentary capacity, undue influence, fraud, or improper execution. Mere unfairness or spite is not enough. The evidence required is substantial, and the burden of proof rests entirely on the person objecting to the will.
Many wills now include an “in terrorem” or “no-contest” clause, which states that any beneficiary who challenges the will and loses will forfeit their inheritance entirely. While these clauses are enforceable in New York, the law provides certain “safe harbors.” For instance, preliminary discovery, including questioning the witnesses to the will under SCPA § 1404, does not trigger the clause. This allows a potential objectant to gather basic information before launching a full contest.
Understanding these foundational rights is the first step toward creating a truly deliberate estate plan—one that not only reflects your wishes but also anticipates the legal realities that will govern it. An intentional plan is one that minimizes the chances for confusion and conflict, preserving family harmony as its primary goal.
The next step is to review your existing documents through this lens. I invite you to schedule a legacy audit with our firm, where we can analyze your current will, trust, and beneficiary designations for potential conflicts with these statutory rights before they become a problem for your loved ones.
