When a person creates an estate plan, there are laws that dictate how it will be handled after that person – the testator – has died. This is true regardless of the device that is used in the estate plan such as a will, a trust or anything else. The surviving spouse is an important part of the document. However, there are times when there is a dispute over the surviving spouse and if the classification as such remains in effect. Understanding the law as to when the person is no longer considered to be the surviving spouse is important to the probate process after death.

If there was a divorce, an annulment, a declaration that the marriage is nullified, or dissolved because of absence when the testator died, the person is no longer considered a surviving spouse. If the marriage was deemed incestuous, bigamous, or prohibited, the person will not be considered a surviving spouse. If there was a divorce, annulment, nullification, or dissolution because of absence and it was decided outside the state of New York, the person is no longer a surviving spouse.

Abandonment by the surviving spouse – if it was continuous until the testator’s death – will terminate the status as a surviving spouse. If the spouse had the duty to provide support and did not do so despite having the means and ability and if the marital duty was not resumed and continuous until the time of the testator’s death, it ends the validity of the person being a surviving spouse.

Estate administration is a frequently forgotten part of the process after a loved one dies. However, disputes frequently arise as to who will have the responsibility to oversee the payment of the estate’s debts, how the heirs are determined, the distribution of the assets, and more. The surviving spouse could also be a point of dispute for a variety of reasons. Having legal assistance whether it is when the estate plan is being crafted, from the perspective of the surviving spouse after the testator’s death, or for those who believe the surviving spouse should no longer be considered the surviving spouse is critical. A law firm that is experienced in estate administration can help.