You cannot disinherit a spouse unless there is a prenuptial agreement in place. New York law states that a surviving spouse has a right of election, that is, a right to receive the greater of $50,000 or one-third (1/3) of their spouse’s assets.  That means that even though you might effectively “disinherit” your spouse by distributing probate and non-probate assets to your respective children, the surviving spouse can still elect to receive one-third of your estate.