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Marriage and Your Will: Protecting Your Children’s Inheritance in NY

  • Legal Assistant
  • 2 minutes ago
  • 2 min read

In New York, a Will drafted while single is not an absolute shield once you remarry. The law provides a "Spousal Elective Share" that guarantees a surviving spouse a portion of your estate, regardless of your Will’s instructions.

1. The 1/3 Rule


Under the NY EPTL, a surviving spouse is entitled to one-third (1/3) of the net estate. Even if you leave "100% to my daughter," your spouse can legally claim their statutory share.

2. Case Study: Ms. Wang’s "Forgotten" Will


Ms. Wang, a Long Island resident, drafted a Will as a single mother. She later remarried but didn't update her Will. Upon her passing, her husband exercised his Elective Share rights. Despite the Will's intent, the court awarded him 1/3 of the assets, leaving the daughter with only 2/3.

3. What is Included (and Excluded)?


The "Elective Share" includes more than just the house; it covers "Testamentary Substitutes" like joint accounts and 401(k)s. However, Life Insurance death benefits are generally excluded from this calculation in New York, making them a powerful tool for direct inheritance.

4. Strategic Solutions


To ensure your daughter remains the sole beneficiary, consider:

  • Prenuptial Agreements: A legal waiver of the elective share.

  • Life Insurance Policy: Designating your daughter as the beneficiary to ensure 100% of the death benefit bypasses the spouse's claim.

  • Irrevocable Trusts: Professional asset partitioning.

Plan Your Future. Protect Your Family. Preserve Your Legacy. 

The Shi Law Group specializes in a full spectrum of legal services, including trusts, wills, estate administration, and Elder Law (Medicaid Planning). We provide expert guidance on wealth succession, prenuptial agreements, strategic tax planning, and asset protection. As a premier Chinese-speaking legal team with deep-rooted expertise in New York and New Jersey, we offer comprehensive, one-stop solutions tailored to the unique needs of Chinese-American families throughout New York City (NYC), Long Island (Nassau & Suffolk), and New Jersey (NJ). 

Whether you are located in Manhattan, Queens, Nassau County, or Jersey City, we empower you to navigate complex legal and tax environments with confidence, ensuring your family’s wealth is shielded and your legacy is secured. 

Disclaimer 

The content provided in this channel/article is for general informational and educational purposes only, intended to enhance awareness of wealth succession planning within the Chinese community. Under no circumstances does it constitute legal, accounting, or tax advice. Reading, receiving, or processing this information does not establish an attorney-client relationship between you and Xicheng Law Firm. As laws and regulations are subject to constant change and every family’s situation is unique, you must consult with a professional attorney regarding the specific details of your case. 

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