Can you disinherit your spouse? Prenuptials and the Spousal Right of Election; Estate of Alan Thicke

As a NY estate lawyer with nearly twenty years of experience litigating complex estate cases I can tell you that where there is a will there is almost always a way.  In theory and in practice there is almost never any better way to protect your NY estate or your family’s financial future other than with a NY attorney drafted and supervised will.  Your NY attorney drafted and supervised will should all but guarantee a smooth transition of your wealth to your intended beneficiaries after you’re gone.     However, some estates may require a little more estate planning than a simple will.  For example, according to the NY Estate Law you cannot disinherit your spouse.  If you do have your NY estate lawyer draft a will disinheriting your spouse, your spouse has a specified amount of time to exercise their Spousal Right of Election upon your passing.  Prior to August 31, 1930, a disinherited surviving spouse had no rights under the NY estate law which prompted the legislature to amend the law.  Historically, husbands disinherited their wives and children by leaving their entire estates to their mistresses which was problematic and against public policy.  Hence EPTL 5-3.1 was adopted in 1930 permitting a surviving spouse, presumably a wife, to exercise her Spousal Right of Election under the NY estate law.


While the NY Spousal Right of Election permitted the surviving spouse to claim the greater of the first Fifty Thousand ($50,000.00) Dollars or One Third (1/3) of their spouse’s NY estate, it was not perfect.  It only entitled the disinherited wife to claim testamentary assets, assets solely in the name of the spouse at the time of their death.  This was problematic, as it created a gaping loophole by which spouses could safely leave assets in trust accounts outside their NY estates for individuals who were not their spouse, leaving their disinherited spouse with little or no inheritance to claim.  As such the NY Legislature amended the NY estate law once again in 1966 drafting EPTL 5-1.1(b) expanding the NY Spousal Right of Election to include both Testamentary and Non-Testamentary assets, encompassing assets held both individually and in trust by the decedent, thus closing the loophole.


So can you currently disinherit you spouse?


As a NY estate lawyer I can tell you the answer is absolutely.  It is called a prenuptial agreement and most wealthy people do not get married without them.  A prenuptial agreement is a contract between two prospective spouses that determines the division of property in the event of divorce.  A valid prenuptial must be drafted and executed with all the formalities required under the laws of NY before you are married. However, what most people fail to appreciate at the time prenuptials are agreed to is that the agreement may also control the division of property at the time of their spouse’s death, depriving the surviving spouse of their NY Spousal Right of Election.


Recently, actor Alan Thicke passed away with an estate worth over Forty Million ($40,000,000.00) Dollars.  Alan Thicke leaves behind three sons, Brennan Thicke, singer Robin Thicke, Carter Thicke and his third wife of eleven years, model Tanya Callou Thicke.  Pursuant to Alan Thicke’s 2005 prenuptial agreement with his wife Tanya, she is only entitled to inherit his Five Hundred Thousand ($500,000.00) Dollar life insurance policy.  As such, the bulk of Alan’s $40,000,000.00 estate is to be distributed amongst his three sons from his prior marriages.  Perhaps Tanya never expected to lose her 70-year-old husband so soon, who died of a sudden heart attack while playing hockey with his 19-year-old son, Carter.  Last week high powered attorneys for Tanya Callou Thicke and Robin and Brennan Thicke squared off in Court.  Tanya Callou Thicke who stands to be disinherited from her late husband’s fortune is now contesting the validity of the prenuptial agreement she signed and is seeking to claim her Spousal Right of Election under California Law, where they reside.


As a NY estate lawyer I can tell you that unless there is something fundamentally flawed with the prenuptial agreement’s execution, the document should be deemed valid thus disinheriting Tanya as the spouse.  That is not to say Tanya’s case has no merit, her attorneys may very well be able to add some value to her case so that she does better that what she is currently entitled to but ultimately prenuptial agreements are binding and controlling.  Therefore, barring some exploitable flaw in the prenuptial agreement’s execution, it is unlikely that Tanya Callou Thicke will be able to inherit any substantial portion of her late husband’s estate pursuant to the estate law or anything approaching the value of what her Spousal Right of Election would have been.


Thus, it is still possible in this day and age to disinherit your spouse pursuant to the NY estate law with some additional preparation.  As distasteful and contrary to public policy as it may seem, if two parties represented by independent counsel decide to waive their interest in the other’s estate in the form of a prenuptial agreement, who are we or the NY legislature for that matter, to interfere.


If you or someone you love are thinking about planning their estate or if you think you have been wrongfully disinherited from your spouse’s estate you may have rights under the NY estate law.  Feel free to call an experienced NY probate lawyer at The Law Offices of Jason W. Stern & Associates, at (718) 261-2444 for a free consultation.  Our Queens Estate Lawyers have over 50 years of combined NY estate law experience handling these often treacherous NY estate cases for families in the counties of Queens, New York, Kings, Bronx, Westchester, Rockland, Nassau, Richmond, Orange, Dutchess as well as in the State of New Jersey.



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