New York Elective Share: Protecting (or Planning Around) a Surviving Spouse

In New York, the elective share is a statutory right that protects a surviving spouse from being completely disinherited. It guarantees them a minimum portion of their deceased spouse’s estate, regardless of what the will, or lack thereof, dictates. This crucial legal provision ensures financial security for a spouse, but it also presents significant planning considerations for anyone crafting an estate plan in New York City.

What is the New York Elective Share?

The New York elective share, codified primarily in Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A, grants a surviving spouse the right to elect to take a share of their deceased spouse’s estate. This share is generally one-third of the decedent’s

Frequently Asked Questions

What is the New York elective share?

The New York elective share is a statutory right under EPTL 5-1.1-A that allows a surviving spouse to claim a minimum portion of their deceased spouse’s estate, typically one-third of the net estate, even if the will attempts to disinherit them.

How is the elective share calculated?

The elective share is calculated based on the ‘net estate’ or ‘augmented estate,’ which includes not only probate assets but also certain ‘testamentary substitutes’ like revocable living trusts, joint accounts with right of survivorship, certain lifetime gifts, and payable-on-death accounts. Debts and administration expenses are deducted before calculating the one-third share.

Can a spouse be disinherited in New York?

No, not completely. While a will can specify that a spouse receives nothing, the New York elective share law (EPTL 5-1.1-A) allows the surviving spouse to ‘elect against’ the will and claim their statutory one-third share of the augmented estate. There are limited exceptions, such as valid prenuptial agreements.

What is a 'testamentary substitute' in New York?

Testamentary substitutes are assets that pass outside of a will but are included in the calculation of the ‘net estate’ for elective share purposes. Examples include assets in a revocable living trust, joint bank accounts with right of survivorship, Totten trusts, certain lifetime gifts made within a year of death, and retirement accounts or life insurance where the spouse is not the beneficiary.

What is the deadline to exercise the right of election in New York?

A surviving spouse must typically exercise their right of election by filing a notice with the Surrogate’s Court within six months from the date letters testamentary or letters of administration are issued. However, in no event can it be exercised more than two years after the decedent’s death.