I recently met with a couple who had just moved to Manhattan after spending thirty years building a life—and a significant portfolio of assets—in California. They sat in my office, concerned. “We’ve been told New York is different,” the husband said. “In California, everything we earned was just ‘ours,’ 50/50. What happens here if one of us dies? Does our old property follow California rules, or New York rules?”
This is not an uncommon question. New York draws families from across the country. Many arrive from one of the nine community property states—like California, Texas, or Arizona—bringing a lifetime of assets acquired under a different legal framework. The confusion is understandable, but the consequences of inaction are significant. The short answer: once you establish residency here, New York law governs your estate. Your assets, regardless of where they were acquired, are subject to our statutes, not the laws of your former home.
New York Is Not a Community Property State
In a community property system, most assets acquired by either spouse during marriage are considered owned equally by both. It doesn’t matter whose name is on the title or who earned the paycheck—it’s a shared pot.
New York operates under a system of “equitable distribution.” This term is most often heard during divorce proceedings, but its principles inform how property is treated at death. In our system, the name on the title carries significant weight. If a bank account, deed, or investment portfolio is in one spouse’s name alone, it is legally their separate property. When that person dies, that asset becomes part of their individual estate, subject to the authority of the Surrogate’s Court.
This is a critical distinction. For couples moving to New York, assuming their property remains jointly owned by default can lead to unintended outcomes. An asset that you always considered “ours” might legally be treated as your spouse’s alone, destined for probate and distributed according to their will—or the state’s intestacy laws if they have no will.
The Surviving Spouse’s Protection: The Right of Election
So, does New York law leave a surviving spouse unprotected if assets were titled in the decedent’s name? Absolutely not. Our state provides a powerful—but different—form of protection known as the spousal “right of election.”
Under New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a legal right to claim a significant portion of their deceased spouse’s estate, regardless of what the will says. This “elective share” is the greater of $50,000 or one-third of the net estate. The calculation of the “net estate” for these purposes is expansive; it includes not only probate assets but also certain non-probate transfers, like assets in a revocable trust or large gifts made shortly before death. This prevents one spouse from disinheriting the other by simply retitling assets.
This statutory right is New York’s answer to the protections offered by community property. It ensures a surviving spouse receives a fair share, but it operates differently. It is not an automatic 50% ownership. It is a right that must be formally exercised by filing a notice with the Surrogate’s Court within a strict timeframe—generally six months after the court appoints a representative for the estate. It is a contingency, not a given.
The Real Question: Is the Asset a Probate Asset?
Ultimately, whether property from a community property state enters New York probate depends not on its origin, but on how it is titled at the time of death. The probate process transfers assets that were owned by the decedent in their name alone. Assets with a built-in, automatic transfer mechanism bypass probate entirely.
Here’s how this works in practice:
- Jointly Owned Property: A Brooklyn brownstone or a brokerage account owned by a married couple as “Joint Tenants with Rights of Survivorship” (JTWROS) passes directly to the surviving spouse. It does not go through probate.
- Assets with Beneficiary Designations: Life insurance policies, 401(k)s, IRAs, and accounts with a “Payable on Death” (POD) or “Transfer on Death” (TOD) designation pass directly to the named beneficiary. These are non-probate assets.
- Assets in a Trust: Property properly transferred into a living trust during the decedent’s lifetime is controlled by the terms of the trust. It is not a probate asset and is managed by the successor trustee outside of court supervision.
Any asset that does not fall into one of these categories—such as a bank account in the decedent’s name alone or their 50% interest in a business—becomes part of the probate estate. This is true whether that asset was earned in Texas or on Wall Street. The Surrogate’s Court will oversee its transfer according to the will or, if there is no will, New York’s laws of intestacy.
For families who have relocated, the stewardship of their legacy requires a deliberate review of how every asset is titled. Assuming the old rules still apply is a risk. An intentional plan, grounded in New York law, is the only prudent path forward.
If you have moved to New York and hold assets acquired in a community property state, the structure of your estate plan may need to be revisited. We can perform a cross-jurisdictional asset and title review to clarify how your property would be treated under New York law and ensure your intentions for your spouse and family are properly documented.
