NY Spousal Election Waiver

New York State. My aunt passed away 6 months ago and is survived by her second husband and her son from an earlier relationship. My aunt died a well-to-do lady and owns and holds sole title to 4 apartment buildings, one unit that she & her 2nd hubby lived in. Aside from some cash and a life insurance policy that were split up out of probate, the real estate needed to go through probate and there is a will that my aunt gives all property to her son, my amazing cousin.

My aunt did her estate plan with a Living Will properly witnessed and drawn up by a NY estate attorney. She gave her husband some cash, cars, & insurance payments totaling in value of $50k, with her current husband knowing he would not get the real estate and the title would transfer to her son. He could remain in the apartment they shared, pay all bills/maintenance until her son decides to sell or gives him 'reasonable notice' to leave.

Per New York law 5-


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5-1.1-A Spousal right of election. Her husband signed a notarized waiver of election—giving up his rights to the 1/3 of the net estate. Upon submission to Surrogate court, her husband is now contesting the probate by saying he now didn't understand what he signed, didn't get it explained, didn't get his own counsel (even though waiver acknowledged he was advised to get his own atty), didn't understand waiver's importance. He also claims he was mentally disabled when he signed waiver—totally ridiculous. He now wants $1 million (equal to 1 apartment building) to settle.

Can anyone help with input on what's the next step? Will the settlement process go very far if he's being stubborn and when will judge get involved?
Will the surrogate court judge determine his competency? If so, how will competency and ability to sign be determined if mental incapacity exists? Hope it's not a drawn out process. Will judge be expected to give quick decision calling out the BS and letting the probate go thru?


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You need a lawyer.
A discussion site is of no value when big money is on the line.
Besides, a will with an estate of great value must be probated.

KDPoolguy said:

My aunt did her estate plan with a Living Will properly witnessed and drawn up by a NY estate attorney.

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Just to be clear, a "living will" and a will are two very different things. "Living will" is a slang term referring to an advanced healthcare directive. I assume you meant to refer to a will (although it's common for folks to make a will and a "living will" at the same time).

KDPoolguy said:

Can anyone help with input on what's the next step?

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You didn't mention who the executor of your aunt's estate is, but that person obviously should be seeking assistance from a probate attorney. If your cousin is not the executor, he should also at least consult with an attorney.

KDPoolguy said:

Will the settlement process go very far if he's being stubborn and when will judge get involved?

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"Settlement process" could reasonably refer to at least two different things, but folks on an online message board have zero ability to make reliable predictions about either of those things in a situation involving people we don't know. As far as a judge getting involved, your post indicates that has already happened.

KDPoolguy said:

Will the surrogate court judge determine his competency?

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If his competency becomes an issue -- which it likely won't -- then yes.

KDPoolguy said:

If so, how will competency and ability to sign be determined if mental incapacity exists?

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Expert medical testimony.

KDPoolguy said:

Will judge be expected to give quick decision calling out the BS and letting the probate go thru?

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Just because you think something is "BS" doesn't mean anyone else will agree, and no judge is going to approach a case with such a mindset. As far as expectations, we have no idea what any of the persons involved might expect.

Thank you for the reply. I always try to include as much detail as possible, so I appreciate helping me fill in holes.
It is a 'Last Will and Testament'. My cousin is named as the nominated executor of the estate in the Will and did retain the same attorney who completed all the estate paperwork in 2003 & 2015. The revised will and waiver were completed and signed together in 2015.

My aunt's husband is claiming:
a) he had/has a mental disability (dementia) and therefore could not have understood the importance of waiving his right to the elective share. My cousin states he is in his early 60s, holds a job and has no history of this disability. So expert medical testimony is required to let a judge determine this? Is he required to pay for this doctor eval? He does have the 'burden of proof', correct?

b) Husband claims assets weren't quantified during waiver—assets were generally discussed in Will.

c) He States a different lawyer should have completed the will and another the waiver. Waiver does meet all 5-1.1-A requirements and clearly advises him that he's been advised to retain his own counsel & that aunts lawyer doesn't represent him.

I understand people get weird, entitled, & in this case they lie when money gets involved after a death. I also get that a spouse shouldn't be disinherited sneakily, without cause nor without their complete knowledge. The case here is I see this happening a lot with second marriages to be sure assets transfer to whom you wish—not your second spouse.
It's clear to all in our extended family that her spouse did know what he signed. It's clear he's just doing this to claw back money he already waived rights to. She was such a smart sweet lady who knew she wanted this and I'm told it was common conversation of who would own the buildings after her death.

My final question is that the probate is filed in Surrogates court I n settlement phase, it's not yet in front of judge per se.
Does this issue of mental incapacity force the issue out of them being a able to settle and into a court issue and it gets decided by the judge and then they go back to settling? I know my cousin would prefer a judge to decide the validity of the will/waiver if the other party is being stubbornly unreasonable.






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zddoodah said:

If his competency becomes an issue -- which it likely won't -- then yes.

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Thanks zddoodah! Can you clarify your response here? More specifically why are claims of competency unlikely to be an issue?



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KDPoolguy said:

My aunt's husband is claiming:
a) he had/has a mental disability (dementia) and therefore could not have understood the importance of waiving his right to the elective share. My cousin states he is in his early 60s, holds a job and has no history of this disability. So expert medical testimony is required to let a judge determine this? Is he required to pay for this doctor eval? He does have the 'burden of proof', correct?

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Yes, since he is claiming a lack of competency, he will have the burden of proof, which probably can be discharged only by expert medical testimony at his expense.

KDPoolguy said:

My final question is that the probate is filed in Surrogates court I n settlement phase, it's not yet in front of judge per se.

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This isn't a question, and I'm not really sure what you're saying (in particular, I don't know what you meany by "settlement phase" or "in front of [a] judge per se").

KDPoolguy said:

Does this issue of mental incapacity force the issue out of them being a able to settle and into a court issue and it gets decided by the judge and then they go back to settling?

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A party claiming a mental incapacity likely cannot consent to a settlement. Thus, at a minimum, the court would have to appoint a guardian or conservator or guardian ad litem.

KDPoolguy said:

Can you clarify your response here? More specifically why are claims of competency unlikely to be an issue?

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My prior response was based on information in your original post. As noted above, the additional information provided in your follow up post changes my response.

KDPoolguy said:

Husband claims assets weren't quantified during waiver—assets were generally discussed in Will.

c) He States a different lawyer should have completed the will and another the waiver. Waiver does meet all 5-1.1-A requirements and clearly advises him that he's been advised to retain his own counsel & that aunts lawyer doesn't represent him.

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In what year did the deceased acquire the property?

Were all apartment buildings acquired PRIOR to her marriage to the second spouse?

In what year did the deceased marry her second spouse?

In what state did the marriage occur?

What were the respective ages of your aunt and her second husband upon marrying?

Did the deceased place her second husband on title to any property?

Was the second spouse a signatory to her bank accounts?

I don't need the answers to the above questions.

I ask them because you (or the one's you represent) might need those answers.

Meanwhile, this will be informative reading for you:

Property Rights - Marital Property - Premarital Property

When Someone Dies | NY CourtHelp

Ineritance Rights of Married People