A client sat in my office last month, holding a will signed by her late husband of thirty years. He had built a significant business in Manhattan, and she had been by his side the entire time. But the will—drafted long before their marriage during a contentious period in his life—left his entire estate to a distant relative. My client was distraught, believing she had been left with nothing. In New York, the story doesn’t end with the last page of a will. The law has its own say.
This is the spousal right of election, one of the most important principles of our state’s estate law. It is a protection forged from a simple public policy: the law does not permit one spouse to completely disinherit the other.
The Foundation: What is the Right of Election?
The right of election is a safety net. It guarantees a surviving spouse receives a fair share of the deceased spouse’s estate, regardless of what the will dictates. This right does not require challenging the will’s validity or proving undue influence. It is a straightforward statutory claim.
The controlling statute is New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A. This law states that a surviving spouse is entitled to an “elective share.” This share is defined as the greater of $50,000 or one-third of the deceased’s net estate. If the will leaves the surviving spouse less than this amount, he or she has the right to file a notice of election with the Surrogate’s Court to claim the difference.
I have seen this right become the critical factor for surviving spouses who would otherwise face sudden financial hardship. It acts as a backstop, reflecting the idea that marriage is an economic partnership. Stewardship of a family’s legacy must also include providing for the person who helped build it.
More Than Just the Will: Calculating the “Net Estate”
A common point of confusion is what constitutes the “estate” for this calculation. Many assume it’s only the property passing through the will—the probate estate. This is incorrect, and the distinction is crucial.
The law is designed to prevent a spouse from being disinherited by simply moving assets out of the probate estate. EPTL § 5-1.1-A calculates the one-third share based on a “net estate,” which includes the probate estate plus a category of assets known as “testamentary substitutes.” These are assets that do not pass through a will but are still counted for this specific purpose. They include:
- Assets held in a revocable living trust.
- Jointly held bank accounts or real estate, to the extent of the deceased spouse’s contribution.
- Gifts made within one year of death that exceed the annual federal gift tax exclusion.
- Pay-on-death (POD) and transfer-on-death (TOD) accounts.
- The cash surrender value of certain life insurance policies.
By including these assets, the law assesses the decedent’s true wealth. It ensures the one-third calculation reflects economic reality, not just the assets subject to probate. A deliberate estate plan must account for this—otherwise, a spousal election can significantly alter the intended distribution of assets.
Exercising the Right: A Matter of Procedure and Prudence
The right of election is not automatic. It must be formally exercised. The surviving spouse must file a notice of election in the Surrogate’s Court handling the estate and serve it upon the estate’s personal representative. The law is unforgiving about deadlines. The election must generally be made within six months from the date letters testamentary are issued by the court, but no later than two years after the decedent’s death.
Failing to act within this window can extinguish the right forever. A prudent spouse who suspects they have been disinherited or under-funded should seek counsel immediately. This is not about initiating a contentious fight—it is about preserving a legal right granted by the state.
A spouse can also waive this right. A waiver must be in writing, signed, and properly acknowledged, typically within a prenuptial or postnuptial agreement. At our firm, we draft and review these agreements with exacting detail to ensure any waiver is intentional, clear, and enforceable.
The spousal right of election is a powerful reminder that estate planning does not happen in a vacuum. It operates within a framework of laws built to protect families. A well-crafted plan does not try to sidestep these laws, but acknowledges them to structure a legacy in a deliberate and legally sound manner.
If you are updating a will that provides less than one-third for your spouse, the first step is to calculate the potential elective share. Our firm can assist in this analysis to ensure your estate plan is not vulnerable to a future election in Surrogate’s Court.
