What is a Waiver of Estate Rights?

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What is a Waiver of Estate Rights?

What is a Waiver of Estate Rights? by Deborah E. Kaminetzky

In New York, your spouse has something called a right of election. What this means is that no matter what you want to leave them in your will, they have a right to $50,000 plus one third of your estate. So for instance if you die with a will leaving your spouse out because perhaps you did not update your will or you purposely left your spouse out for whatever reason, they will still get a share of your estate. If you die without a will, your spouse is entitled to even more – $50,000 and half your estate.

When we draft divorce documents, we include waiver of estate rights. This essentially says that as soon as the agreement is executed, but before the divorce judgment is signed by the judge (which can take six to eight months) the spouses give up their rights to share in the other’s estate if one should pass away before the other.

With divorcing couples where the plaintiff has already filed a divorce and the defendant has already been served, automatic restraining orders are in place which state that neither party can change beneficiaries on their asset accounts. Once the stipulation or agreement is executed, both parties can feel free to make any changes necessary to ensure that the account will go to whomever they wish.

The waiver of estate rights is so important that I have even insisted on including the estates waiver in an agreement involving an annulment. Once people have decided to split up, they usually don’t want their soon-to-be ex getting anything from their estate.

We frequently include an estate waiver in prenuptial agreements as well, especially for second marriages. People getting married for the second time frequently want the bulk of their estate to go to the children of their first marriage, not to the new spouse. We do include a clause that allows for them to leave the second spouse a bequest despite the language in the prenuptial agreement.

Making sure your former spouse does not inherit from your estate is only one step. Our office drafts estate plans on a regular basis. After client’s get divorced one of the next things they should do is update or initially draft their estate plan which includes a will, health care proxy, living will and power of attorney. Then they are truly planning for their future.

Deborah E. Kaminetzky


Deborah E. Kaminetzky, Esq.
Kaminetzky Law & Mediation, P.C.
132 Spruce Street
Cedarhurst, New York 11516
Phone: 516.374.0074

By | 2019-05-14T21:44:00+00:00 June 15th, 2017|Divorce Law, Estate Planning, Mediation|Comments Off on What is a Waiver of Estate Rights?

About the Author:

Deborah E. Kaminetzky
Deborah E. Kaminetzky is the founder of Kaminetzky Law & Mediation, P.C. located in Long Beach, New York. Prior to starting the firm Deborah worked at a Long Island firm where she learned the practice of Matrimonial and Family law and Estate Planning. Deborah has also worked at the New York City Department of Consumer Affairs where she was responsible for prosecuting unlicensed home improvement contractors and negotiating settlements for consumers. Prior to practicing law, Ms. Kaminetzky was the president of a commercial property management corporation in the New York Metro area. Ms. Kaminetzky is a member of the National Association of Divorce Professionals, New York State Council on Divorce Mediation, Family and Divorce Mediation Council of Greater New York, New York State Bar Association (Business Law, Estate, Family Law, ADR and General Practice Sections), Nassau County Bar Association (where she serves as Chair of the General, Solo and Practice Management Committee and The Nassau County Women’s Bar Association. Ms. Kaminetzky was appointed to the Committee on Law Practice Management of the New York State Bar Association in 2015 and has been a frequent speaker and author of articles for their journal. Ms. Kaminetzky serves on the Board of Directors of the Yashar Attorney and Judges Chapter of Hadassah as a their Treasurer, and was their Woman of the Year 2012 and Leadership award honoree in 2019. Deborah graduated from New York Law School in 1991 and the University of Michigan, Ann Arbor in 1986. Ms. Kaminetzky was admitted to the First Department in 1991 and the United States Supreme Court Bar in February of 2015. Deborah is on the Matrimonial fee dispute arbitration panel for Nassau County. She expanded her alternative dispute resolution practice by completing a Mediation certificate program in December of 2013, an advanced Mediation certificate program in 2015 and most recently a Divorce Mediation certificate in early 2016 from The New York Peace Institute. Ms. Kaminetzky has spoken to various groups on topics including matrimonial law, technology and social media use, and disaster preparedness for business including cybersecurity.