Which of the following would cause a surviving spouse to lose the elective share due to marital status?

• A. Divorce valid in NY
• B. Separation decree against surviving spouse
• C. Incestuous or bigamous marriage
• D. Lack of support by surviving spouse

Answer: (C)

The key idea is that the elective share for a surviving spouse only exists if there is a legally valid marriage at the decedent’s death. A marriage that is incestuous or bigamous is void from the start and never creates a legally recognized spouse. Because there is no valid spouse at death, the surviving party cannot claim an elective share.

Incestuous or bigamous marriages are void under NY law, so they don’t generate spousal rights in probate, even if the parties cohabited or presented themselves as spouses during life. By contrast, a divorce ends the surviving spouse’s status before death, and a separation decree doesn’t necessarily void the marriage for purposes of the elective share. But the scenario in which the marriage itself is invalid from the outset—incestuous or bigamous—directly prevents the existence of a spouse who could take the elective share.