A few years ago, a woman came to our Manhattan office distraught. Her husband of nearly 40 years had passed away, and his will—drafted long before their marriage—left their shared apartment to his brother. She believed she was about to lose her home. She felt she had no rights. But New York law disagreed. The state provides a safety net for surviving spouses, a powerful right that can override the plain text of a will. This is a crucial concept in our work: estate planning is not just about signing documents. It is about deliberately and intentionally asserting the rights the law gives you to protect your family and shape your legacy.
Your Foundational Right: The Last Will and Testament
Your most fundamental right in estate planning is directing where your property goes after your death. You exercise this right through a Last Will and Testament. Without a will, you give up that right, and the state’s intestacy laws make those decisions for you. The court does not know that you wanted to provide for a lifelong friend or that one of your children needs more support than another. The law will simply divide your assets according to a rigid statutory formula.
Creating a will is your first act of stewardship. It is a formal declaration of your intentions. For the Surrogate’s Court to honor that declaration, it must comply with specific legal formalities. In New York, the will must be in writing, signed by you at the end, and witnessed by at least two people who sign in your presence. These are not arbitrary rules—they exist to prevent fraud and ensure the document truly reflects your wishes. Exercising your right to create a will is the baseline for any intentional estate plan.
Statutory Protections: The Spousal Right of Election
As my client discovered, the right to dispose of your property is not absolute. New York law places certain limits on that power, primarily to protect a surviving spouse. You cannot completely disinherit your husband or wife. The law steps in to create a right, even when a will attempts to take it away.
This protection is codified in New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, known as the “right of election.” This statute gives a surviving spouse the right to claim a share of their deceased spouse’s estate, regardless of what the will says. The elective share is the greater of $50,000 or one-third of the net estate.
For the widow who thought she would lose her home, this right was everything. We filed a notice of election with the Surrogate’s Court on her behalf, asserting her statutory claim to a third of her husband’s estate. This right is not automatic; it must be affirmatively exercised within a strict timeframe. It is a powerful example of a legal right that provides a critical backstop, ensuring that decades of partnership are recognized by the law, even when they are not recognized in an outdated will.
The Right to Appoint Your Fiduciaries
Your rights extend beyond directing your assets. You also have the critical right to choose the people responsible for carrying out your wishes. These individuals are known as fiduciaries, and they have a legal duty to act in the best interests of your estate and your beneficiaries. Choosing them is one of the most important decisions you will make.
You have the right to name:
- An Executor in your will to manage your estate, pay its debts, and distribute your assets.
- A Trustee to manage assets held in a trust for your beneficiaries, perhaps for many years.
- A Guardian for your minor children, the person who would raise them if you could not.
- An Agent under a Power of Attorney to handle your financial affairs if you become incapacitated.
- A Health Care Agent to make medical decisions on your behalf if you cannot.
If you do not exercise this right, a court will appoint someone for you. That person may be a stranger to your family or someone you would never have chosen. By proactively naming your fiduciaries, you retain control, placing your legacy in the hands of people you know and trust to be prudent custodians.
Asserting your legal rights is an act of responsibility for the people you care about. It ensures your intentions—not a state formula or an old document—govern the future. The first step is to inventory not just your assets, but the people you trust. To understand how these appointments work, schedule a preliminary call with our office to discuss the roles of the fiduciaries in your own plan.
