’Till Death [And Divorce] Do Us Part

August 29, 2018

The Surviving Spouse’s Right of Election vs. A Former Spouse’s Rights in the Decedent’s Estate under a Separation Agreement

Spousal separation agreements sometimes pro­vide for one party to make a provision in his or her will for the benefit of a soon-to-be former spouse and/or children of their marriage. What if that party dies without fulfilling that contractual commitment? It is well-settled that a valid contract between spouses that provides for the distribution of one’s estate to the other, or their children, may be enforced against the deceased spouse’s estate.

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Reprinted with permission from the Trusts and Estates Law Section Newsletter, Summer 2018, Vol. 51, No. 2, published by the New York State Bar Association, One Elk Street, Albany, NY 12207.

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