A spouse of a person who died in New York has the right to inheritance by operation of law, even if there is a will that leaves her out. A spouse has fundamental property rights in their estate, as follows:
As the surviving spouse, you also have other important rights.
There are ways that people try to plan their estate in order to exclude their spouse and take money outside of the estate in an attempt to avoid the elective share. New York lawmakers are aware of those attempts and have done their best to close those loopholes. 
Property Transferred Within a Year of Death – Property transferred within a year of death is considered subject to the spousal rights of elective share in New York. The defenders of the will are going to claim that the decedent does not own the property and it’s not a part of the estate and not subject to the estate rules, but the claim is not likely to work, as New York law has a “claw-back” provision whereby the surviving spouse can recapture the property gifted by the decedent and taken out of the estate within a year of his death. Such property is considered to be a part of the “augmented estate” for the purposes of calculating the amount of elective share due to the surviving spouse.
Property passing outside of probate – The other heirs may claim that some of the property of the person who died is not a part of their estate. While it is technically true that “testamentary substitute” property is not a part of the probate estate, it is nevertheless a part of the “augmented estate” and is therefore countable towards calculating the elective share that the surviving spouse is entitled to. This property includes joint bank accounts, assets transferred to trusts, pension plans insurance policies where the surviving spouse is not the beneficiary.
Claiming that the estate has no money to satisfy the elective share – Establishing the right to an elective share is only the first step of the problem. The hardest part of the elective share is not the elective share New York proceeding, but the accounting proceeding. The executor will try to use accounting tricks to claim that the estate does not have the money to pay for the elective share. They will try to “zero out” the estate. Legitimate expenses are taken into an account and deducted from the total amount of the estate used to calculate the size of the elective share. But unnecessary expenses, accounting tricks, and money paid to the proponents of the estate are usually not allowed by New York Surrogate’s Court to be deducted from the amount of the estate for the purposes of calculating the elective share.
The next set of loopholes are grounds to override the right of election. The proponents of a will use those loopholes to defend against the surviving spouse’s exercise of a right of election.
Loophole 1: “there is a prenuptial agreement.” A valid prenuptial or postnuptial agreement invalidates a spouse’s right to make a claim in an estate. However, this loophole itself is subject to loopholes, such as:
Using those “loopholes on a loophole,” a surviving spouse may be able to set aside the prenuptial agreement and be able to claim her spousal rights.
Loophole 2: “you abandoned the spouse” – abandonment  is a loophole that is sometimes used to try to invalidate the elective share claim. It often comes up when the deceased spouse and the surviving spouse were in the process of divorce but the deceased spouse died before the divorce could be completed. Needless to say, an incomplete divorce is not divorce so the spouse is still entitled to an elective share unless the other heirs can successfully prove abandonment. Just proving that the couple did not get along is not enough, even if they no longer lived together at the time of the deceased spouse’s death.
Loophole 3: “the marriage was invalid” – if the marriage was invalid for whatever reason, there is no elective share.  This elective share defense is commonly used to fight an elective share claim made by a much younger surviving spouse in an estate of an older deceased spouse. The argument is that the deceased spouse was too sick to give consent to enter into a marriage.
Loophole 4: “you killed your spouse.” Killing the spouse invalidates any rights to inherit from their estate. Not much of a loophole, as this is not a very common scenario. Nevertheless, it is easy to see this loophole’s potential to be applied in abuse and neglect cases.
In order to qualify for a spousal right to an elective share, the electing spouse has to file a Notice of Election within six months of the appointment of the executor of the estate, and within two years of the death of the decedent. This is a strict statutory deadline. There are some situations where missing the deadline is excusable, but mostly it is not. There is no reason to miss this deadline; it’s a very simple paper to file. There are documents that come later that are more complicated, but this one is intentionally made easy so that people don’t put it off. Blowing the deadline to File a Notice of Election almost always means losing the right to file an elective share.
Up to $56,000 of estate property goes to the surviving spouse or children automatically, whether or not there’s a will, or if there’s a will that excluded the surviving spouse.  This is broken down as follows:
The decedent’s business is an important asset of the estate. If a business of the decedent is “taken over” by the children of the decedent, the surviving spouse should make no mistake about it and ask her New York estate lawyer to conduct a forensic valuation of the business and claim the business as part of the estate for the purpose of determining the surviving spouse’s share.
When a surviving spouse gets disinherited or their share is diminished, they often bring a will contest based on one or more of the following allegations:
In contesting a Will, the surviving spouse accuses those who benefit from the will of interfering with the deceased spouse’s natural wishes to include his spouse in his estate plan.
Easiest case scenario – we file a Notice of Election, the executors of the estate don’t dispute and don’t try to find loopholes and just give the spouse the entire elective share (hasn’t happened yet in my practice, but hope springs eternal).
The Typical Scenario – Wife left out of a will in favor of children from the first marriage. Children try to use a loophole and claim that the spouse who died transferred property to children from their first marriage before their death, tell the wife that there is no money to in the estate to claim against. She contacts a New York estate lawyer (me), learns that any money gifted by the decedent within a year before his death is considered a part of the estate for the purposes of calculating the elective share, and the court accepts that argument (because it’s the law).
Abandonment example – wife claims an inheritance, the deceased husband’s sister claims that the wife abandoned the husband and moved to a different state. Her estate lawyer defends by saying that the couple consensually moved to different states; there was no abandonment on the wife’s part.
“Zeroing out” the estate – executor, son of the decedent, claims that a multi-million dollar estate somehow owes money than it has. A contested accounting proceeding ensues, where we have a disagreement over the numbers.
Is New York a community property state for death? New York is a separate property state in divorce, but those concepts don’t apply to death. Instead, look at spousal rights above.
New York elective share laws are complicated, and experience in the Surrogate’s Court practice is paramount when dealing with those claims. We at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
 EPTL 5-3.1