Can you Disinherit a Spouse in NY? Estate of Brittany Murphy and the Right of Election

Can you Disinherit a Spouse in NY? Estate of Brittany Murphy and the Right of Election

For any member of either Generation X or Millennial demographics there were few movies in the 1990’s as iconic as Clueless.  The film about privileged high schoolers in Beverly Hills produced some of the most recognizable actresses of that generation.  However one actress in particular emerged from Clueless more famous than all of the others, Brittany Murphy.  Murphy who had been born into very humble beginnings in Edison New Jersey, moved to Los Angeles with her single mother Sharon Murphy to try to start a career in acting.  Her big break came with her supporting role in the 1994 blockbuster film, Clueless.  Murphy went on to star in even bigger roles with stars like Eminem in his biography about his life in Detroit, 8 Mile, in addition to roles alongside Dakota Fanning, Michael Douglas, Ashton Kutcher and Quinton Tarantino. Murphy whose comedic talents were often compared to Lucille Ball also pursued a successful career in music which displayed her ability to sing and master any instrument in a matter of minutes.

By the middle of the 2000’s Brittany had amassed a substantial amount of money, including her house in the Hollywood Hills.  Unfortunately at the time Brittany was also losing a lot of weight, allegedly due to a substance abuse problem.  In 2007 Murphy executed her Last Will & Testament leaving her entire multimillion dollar estate to her mother Sharon Murphy, completely disinheriting her fiancé Simon Monjack, who she would marry later that year.

After several years of battling weight loss and substance abuse, Brittany Murphy passed away on December 20, 2009 from cardiac arrest at home in her Hollywood Hills house at the age of 32. Murphy was survived by her husband, film director Simon Monjack, who allegedly also shared a substance abuse problem. After Murphy’s death, Monjack confirmed that he had been disinherited from Murphy’s Last Will & Testament which left her multimillion dollar inheritance to the actress’s mother Sharon.  On May 10, 2010, Monjack was found dead in Murphy’s Hollywood Hills home, less than 6 months after Murphy’s death.  

Can you disinherit a spouse?

The short answer is no you cannot disinherit a spouse in the State of New York, nor California for that matter as all surviving spouses, absent a valid prenuptial agreement, are entitled to assert their spousal right of election.  A spousal right of election allows a surviving spouse to take One-Third of the gross estate assets including but not limited to testamentary substitutes.  Testamentary substitutes are assets with beneficiary designations and assets placed in Trust which customarily pass outside the probatable estate.  However for surviving spouses asserting their right of election testamentary substitutes count towards their one third calculation. 

While you may disinherit children, you may not disinherit your spouse in your NY will.  This goes back to a time, more than 80 years ago, when men were predominantly the only earners in a household.  There is a strong public policy argument to be made against disinheriting a spouse which dates back to this era and continues today.  Unfortunately it was not uncommon for men in the 19th and 20th centuries to disinherit their spouses and children, opting instead to leave their estates to their mistresses, rendering their families destitute.  As such the NY State Legislature adopted NY Estate Law EPTL 5-1.1(a) entitling surviving spouses to an absolute One-Third of their spouse’s probatable and non-probatable NY estate assets should their spouse exclude them from their Last Will & Testament.  See Estate of Cyngiel, 40 Misc. 3d  1216 ( Surr Crt Kings 2013).

However for any spouse to assert their right of election their NY estate lawyer must file their Notice of Right of Election within the allotted time pursuant to the NY Estate Law.  Pursuant to the NY Estate Law a NY estate lawyer may not file a right of election on behalf of his client without following the required procedures for serving the estate representative, the executor, and filing the notice of election with the court within 7 months of their appointment.  That being said the NY estate law permits NY estate lawyers to extend the time to file that Notice of Right of Election upon a showing of good cause for a period not to exceed two years from the date of the decedent’s death. 

As such, in asserting ones Right of Election, their NY estate lawyer must be diligent in the service and filing of their petition to exercise their right of election or they may lose the right to inherit against a spouse’s NY estate. Additionally the NY estate law is clear that the right of election is personal to the surviving spouse and no one else may file the Notice of Right of Election on their behalf.  What this means is that a NY estate lawyer cannot file a Right of Election within the prescribed time period unless their client is alive.  So for example, if a husband dies in March and their surviving spouse dies in August without having served the necessary party and the Surrogate’s Court with a valid exercise of their Right of Election, their right of election is not transferable to their estate or any other agent.

As such asserting your right of election is time sensitive and can be lost if not filed properly.  In the case of Brittany Murphy’s Estate above, because her surviving spouse was disinherited, but did not file his Right of Election against the executor of Murphy’s Estate within the prescribed time period, his right of election was lost and cannot be asserted by anyone, even the appointed fiduciary of Simon Monjack’s Estate.  This is because the Right of Election is personal to the surviving spouse and only to the surviving spouse and may not be asserted by anyone other than the decedent’s surviving spouse.  With Monjack’s untimely passing so close to Brittany Murphy’s death there was no way his Right of Election could be preserved. 

In Matter of Fellows, 16 A.D.3d 995 (3rd Dept. 2005),  it was stated that the NY Estate Law makes it clear that the right of election is personal in nature and can only be asserted by the surviving spouse in that the legislature specifically excluded the right of election to be exercised by the surviving spouse’s estate should they post decease.  In Matter of Fellows, where a right of election was filed by the executor of a post deceased spouse’s estate the Surrogate’s Court determined that right to be invalid.

Should you or a loved one wish to speak with a NY estate lawyer about estate issues, feel free to call us at (718) 261-2444 to speak with an experienced NY estate lawyer for a free consultation.  With more than 75 combined years of successfully probating, litigating NY estates and drafting wills for New Yorkers in the Counties of New York, Queens, Kings, Nassau, Suffolk, Bronx, Richmond, Westchester, Orange, Rockland and Dutchess we are here to answer all of your questions.