Can a Husband Write His Wife Out of a Will in New York? The Spousal Elective Share Under EPTL 5-1.1-A

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York estate and Surrogate's Court attorney. Last reviewed: [insert date]. This article explains New York law for estates of people who died on or after September 1, 1992.

The short answer

A husband can write his wife out of his will. A wife can write her husband out. Any spouse can leave the other spouse nothing in a will, and the will is still valid. The will does not control the outcome, though. New York gives every surviving spouse a statutory "right of election" under Estates, Powers and Trusts Law (EPTL) 5-1.1-A. A spouse who is left out can claim the greater of $50,000 or one-third of the decedent's net estate, and the net estate includes property that was moved outside the will through joint accounts, revocable trusts, retirement accounts, and gifts made in the last year of life.

The surviving spouse has to act. The election must be served and filed within six months after the Surrogate's Court issues letters to the executor or administrator, and never later than two years after the date of death. The right is lost only if the spouse signed a valid written waiver, such as a prenuptial or postnuptial agreement, or if the spouse is disqualified under EPTL 5-1.2 for divorce, a void marriage, a separation decree entered against the spouse, abandonment, or failure to support.

The statute refers to a "surviving spouse." It applies the same way to a husband, a wife, and a same-sex spouse. The rest of this page uses "spouse" except where the husband-and-wife question is specifically addressed.

What the elective share is and how it is calculated

EPTL 5-1.1-A(a)(2) sets the elective share at the greater of:

• $50,000, or the whole net estate if the net estate is worth less than $50,000; or
• one-third of the net estate.

The fraction does not change based on whether the decedent had children. An older version of the statute, EPTL 5-1.1, gave a surviving spouse one-half when there were no children. That rule applies only to people who died before September 1, 1992. Pages and articles that still quote a one-half share for childless decedents are describing law that no longer governs new estates.

The "net estate" is larger than the probate estate. Under EPTL 5-1.1-A(a)(2), it is the value of everything passing under the will or by intestacy, plus the value of all "testamentary substitutes" described below, minus debts, administration expenses, and reasonable funeral expenses. Estate taxes are not deducted before the share is computed.

Only property that passes to the surviving spouse outright counts toward satisfying the share. If the will leaves the spouse a life interest in a trust, that interest does not reduce the elective share. A spouse who elects takes the outright share instead of the trust interest. This is one of the main changes the 1992 amendments made; under the pre-1992 statute a trust could satisfy part of the share.

The right of election applies to the estate of a person domiciled in New York at death. A non-domiciliary's New York property is subject to election only if the will states that New York law governs the disposition (EPTL 5-1.1-A(c)(6)-(7)).

What counts: testamentary substitutes under EPTL 5-1.1-A(b)

People who want to leave a spouse out often try to empty the probate estate during life, so that there is little left for the spouse to claim against. The Legislature anticipated this. EPTL 5-1.1-A(b)(1) lists transfers that are pulled back into the net estate for elective share purposes even though they never pass through probate:

• Gifts causa mortis: gifts made in contemplation of impending death.
• Gifts within one year of death: any transfer made within one year before death for which the decedent did not receive full consideration, except to the extent the gift qualified for the federal annual gift-tax exclusion. A gift made thirteen months before death is generally outside this rule unless it falls under another category.
• Totten trust accounts: bank accounts held "in trust for" another person.
• Joint bank accounts: accounts in the decedent's name and another person's name payable to the survivor, to the extent the decedent contributed the funds.
• Jointly held property: real estate and other property held as joint tenants or tenants by the entirety, to the extent of the decedent's contribution. Where the joint owner is the surviving spouse, one-half is treated as a testamentary substitute and passes to the spouse, so it counts toward satisfying the share.
• Revocable trusts and retained-interest transfers: property the decedent transferred during life while keeping the income, the right to use the property, or the power to revoke or amend. A revocable living trust does not defeat the elective share.
• Retirement and deferred compensation accounts: IRAs, pensions, 401(k)s, profit-sharing plans, and similar arrangements. For certain qualified employer plans governed by federal law, only one-half of the value is counted. Plans where the beneficiary was designated before September 1, 1992 and never changed are excluded.
• Property subject to a general power of appointment held by the decedent at death.
• Transfer-on-death securities registrations.

Two items are commonly misstated. Life insurance proceeds are not a testamentary substitute in New York; a policy payable to someone other than the spouse is not counted in the net estate. And for joint accounts and joint property held with a third party, the surviving spouse carries the burden of proving how much the decedent contributed (EPTL 5-1.1-A(b)(2)). Bank records and the estate accounting are where that fight usually takes place. See also are joint bank accounts subject to inheritance tax for how joint accounts are treated more generally.

A worked example

Assume a husband dies domiciled in New York in 2024. His will leaves his wife $60,000 and the rest of his probate estate to his two children from a first marriage. Before death he also did the following: he added his son to a $200,000 brokerage account as joint owner with survivorship, funded entirely with his own money, and he put $100,000 into a revocable trust for his daughter. After debts, administration expenses, and funeral expenses, the probate estate is worth $600,000.

The net estate for elective share purposes is:

• Probate estate after expenses: $600,000
• Joint brokerage account (testamentary substitute, decedent contributed 100%): $200,000
• Revocable trust (testamentary substitute): $100,000
• Net estate: $900,000

One-third of $900,000 is $300,000, which is more than $50,000, so the elective share is $300,000. The $60,000 the will gives the wife outright is credited against that figure. She is entitled to another $240,000.

Under EPTL 5-1.1-A(c)(2), the shortfall is contributed ratably by everyone who received property from the decedent, whether under the will or through a testamentary substitute. The other recipients received $840,000 in total: $540,000 to the children under the will, $200,000 to the son through the joint account, and $100,000 to the daughter through the trust. Each contributes in proportion:

• Will beneficiaries: $540,000 / $840,000 of $240,000, about $154,300
• Son (joint account): $200,000 / $840,000 of $240,000, about $57,100
• Daughter (trust): $100,000 / $840,000 of $240,000, about $28,600

The son cannot refuse on the ground that the brokerage account "was never part of the estate." The statute reaches it. In practice the executor will usually compute and collect these contributions, and the numbers get settled in the estate accounting.

Deadlines and how to make the election

EPTL 5-1.1-A(d) sets the procedure:

• Six months: the election must be made within six months after the Surrogate's Court issues letters testamentary or letters of administration.
• Two years: in no event may the election be made more than two years after the decedent's death, even if letters were issued late.
• Service: the spouse serves a written notice of election on the executor or administrator, personally or by certified mail, return receipt requested.
• Filing: the original notice, with proof of service, is filed and recorded in the Surrogate's Court of the county where the estate is being administered.

The court may extend the time for reasonable cause if the spouse asks before the period expires. In limited circumstances the court can relieve a spouse from a default if the application is made within twelve months after letters issued and the estate accounting has not yet been settled. Do not rely on either of these. The notice of election is a short document, and missing the deadline is the most common way a surviving spouse loses the share.

The right is personal to the surviving spouse. If the spouse is incapacitated, a court-appointed guardian can make the election with court authorization. If the surviving spouse dies without having elected, the right generally dies with that spouse. If no one has petitioned for letters, the spouse should consider petitioning for letters of administration or probate rather than waiting, because the two-year outer limit runs from the date of death regardless. For a sense of how long the court process takes, see a sample NYC probate timeline.

Exception 1: a valid written waiver (prenup or postnup)

A spouse can give up the right of election. EPTL 5-1.1-A(e) requires the waiver to be in writing, signed, and acknowledged in the manner required for a deed to be recorded, which in practice means a notarized acknowledgment. The waiver can be signed before or after the marriage, with or without consideration, and can apply to one spouse's estate or both. Most waivers appear in prenuptial or postnuptial agreements, which must also satisfy Domestic Relations Law § 236(B)(3).

A surviving spouse who is told "you signed a prenup" should have the document reviewed. New York courts have refused to enforce nuptial agreements on these grounds:

• the agreement was not properly acknowledged (the Court of Appeals held in Matisoff v. Dobi, 90 N.Y.2d 127 (1997), that an unacknowledged agreement is unenforceable);
• fraud, including a material misstatement or concealment of assets;
• duress or overreaching, such as an agreement presented on the eve of the wedding with no chance to review it;
• unconscionability, where the terms are so one-sided that no reasonable person would sign and no fair person would accept them.

Lack of independent counsel does not by itself void an agreement, but courts weigh it when deciding whether the signing spouse understood what was given up.

Exception 2: disqualification under EPTL 5-1.2

A surviving spouse has no right of election, and no intestate share, if any of the following applies under EPTL 5-1.2:

• Divorce or annulment: a final judgment of divorce, annulment, or nullity that is valid in New York was in effect at death. A pending divorce does not count. If a spouse dies before the judgment is signed, the survivor is still a spouse.
• Void marriage: the marriage was incestuous, bigamous, or otherwise prohibited by law. Claims that an elderly decedent lacked capacity to marry fall here and are litigated.
• Separation decree against the survivor: a final decree or judgment of separation, recognized in New York, was entered against the surviving spouse. A separation agreement alone does not disqualify unless it contains a valid waiver.
• Abandonment: the surviving spouse abandoned the decedent and the abandonment continued until death. The party asserting abandonment must prove it (Matter of Riefberg, 58 N.Y.2d 134 (1983)). Living apart by agreement, or a marriage that had simply gone cold, is not abandonment.
• Failure to support: the surviving spouse had the duty and the means to support the decedent and failed or refused to do so, continuing until death.

Separately, New York's judge-made "slayer rule," traced to Riggs v. Palmer, 115 N.Y. 506 (1889), bars a person who intentionally kills the decedent from inheriting from that person.

Exempt property under EPTL 5-3.1, in addition to the elective share

Apart from the elective share, EPTL 5-3.1 sets aside certain property for the surviving spouse (or, if there is no spouse, for children under 21). This property is not treated as an estate asset and passes to the spouse whether or not there is a will. The current limits are:

• household furniture, appliances, utensils, musical instruments, electronic and photographic devices, clothing, fuel, and provisions, up to $20,000;
• family bible, religious books, family pictures, books, computer software and discs, up to $2,500;
• domestic animals with 60 days of feed, farm machinery, one tractor and one lawn tractor, up to $20,000;
• one motor vehicle, up to $25,000;
• money or other personal property, up to $25,000, reduced if needed to cover reasonable funeral expenses when other estate assets fall short.

These amounts total $92,500. Older articles that list a $56,000 total reflect limits that were raised in 2010.

If you want to limit what your spouse receives

A person who wants to favor children from a prior marriage, or anyone else, over a spouse has lawful options. Each has limits.

• A prenuptial or postnuptial agreement with a properly acknowledged waiver of the right of election. This is the only method that removes the right entirely.
• Leaving the spouse the elective share outright and directing the rest as you choose. A spouse who already receives one-third outright has nothing to elect against.
• Life insurance payable to other beneficiaries, since insurance proceeds are not a testamentary substitute.
• Completed, irrevocable transfers made more than one year before death in which you keep no income, use, or power to revoke. Transfers within the last year, or into a revocable trust, are counted.
• Retirement account beneficiary designations, with the caveat that federal law requires a spouse's written consent to name someone else as beneficiary of most employer plans, and New York counts at least half of such accounts anyway.

A will that cuts out a spouse is also a will that invites a contest. The testator must have testamentary capacity, meaning an understanding of the nature of the act, the nature and extent of the property, and the identity of the natural objects of bounty. Dementia or a serious illness does not automatically defeat capacity, but it raises the stakes. A will signed under those conditions should be executed with the formalities of EPTL 3-2.1, with disinterested witnesses, with the beneficiary excluded from the room, and with the attorney's contemporaneous notes on why the spouse was omitted. The firm's drafting and execution practices for contested situations are described on our New York will drafting page.

If you are the spouse who was written out

Being left out of a will is not the end of the matter. Take these steps:

1. Find out whether letters have issued. The six-month clock starts when the Surrogate's Court appoints the executor or administrator. The court file in the county of the decedent's domicile will show this.
2. Serve and file the notice of election before the deadline, even while you are still gathering information. The election can be withdrawn later if it turns out you received more under the will than the share would give you.
3. Identify testamentary substitutes. Joint accounts, Totten trusts, revocable trusts, retirement accounts, and gifts within the last year. Request the bank and brokerage records.
4. Review any prenup or postnup for proper acknowledgment, disclosure, and fairness before accepting that it bars the claim.
5. Scrutinize the estate accounting. Legitimate debts and administration expenses reduce the net estate. Inflated fees, payments to the will's proponents, and expenses with no documentation are challenged in a contested accounting proceeding.
6. Value any business. If the decedent's company was taken over by children or partners, the decedent's interest is still an asset to be valued and included.
7. Consider a will contest. The election and a will contest are separate remedies. A spouse can elect against the will and also object to probate on grounds of undue influence, lack of capacity, improper execution, or forgery. See how to win a will contest in New York and our will contest attorney page.

One more point for spouses who receive or expect to apply for Medicaid. New York Medicaid treats a surviving spouse's failure to assert an available elective share as a transfer of assets, which can create a period of ineligibility. A spouse in that position should get advice before deciding not to elect.

If there is no will at all

A spouse cannot be disinherited by silence. If the decedent left no will, EPTL 4-1.1 gives the surviving spouse the first $50,000 plus one-half of the balance when the decedent left children or their descendants, and the entire estate when there are none. Those shares are larger than the elective share, which is why someone who wants to limit a spouse's inheritance must sign a will and still plan around the right of election. See estate administration without a will.

Frequently asked questions

Can a spouse be completely left out of a will in New York?

Yes, the will itself can leave a spouse nothing and still be admitted to probate. The spouse can then elect to take the greater of $50,000 or one-third of the net estate under EPTL 5-1.1-A, unless there is a valid written waiver or a disqualification under EPTL 5-1.2.

How long does a wife or husband have to claim the elective share?

Six months from the date the Surrogate's Court issues letters to the executor or administrator, and no later than two years after the date of death. The notice must be served on the fiduciary and filed with the court.

Does a prenup waive the elective share?

It does if the waiver is in writing, signed, and acknowledged before a notary in the form required for a deed. An agreement that was never acknowledged, or that was obtained by fraud or duress, or that is unconscionable, can be set aside.

What if we were separated but not divorced?

Separation does not end the right of election unless a court entered a final separation decree against the surviving spouse, the surviving spouse signed a valid waiver, or the estate proves abandonment or failure to support. A divorce that was filed but not finalized does not disqualify the survivor.

Does money in a joint account with a child count?

Yes. A joint account with right of survivorship is a testamentary substitute to the extent the decedent contributed the funds. The surviving spouse has the burden of showing the decedent's contribution.

Does the elective share change if the decedent had children?

No. Since September 1, 1992 the share is the greater of $50,000 or one-third of the net estate for every surviving spouse. The old one-half share for childless decedents applies only to deaths before that date.

Statutes and cases cited

• EPTL 5-1.1-A, right of election by surviving spouse (deaths on or after September 1, 1992)
• EPTL 5-1.2, disqualification as surviving spouse
• EPTL 5-3.1, exemption for benefit of family
• EPTL 4-1.1, descent and distribution of a decedent's estate (intestacy)
• EPTL 3-2.1, execution and attestation of wills
• Domestic Relations Law § 236(B)(3), agreements between spouses
• Matisoff v. Dobi, 90 N.Y.2d 127 (1997); Matter of Riefberg, 58 N.Y.2d 134 (1983); Riggs v. Palmer, 115 N.Y. 506 (1889)

Talk to a New York estate attorney

Elective share disputes are decided in the Surrogate's Court of the county where the decedent lived, and the deadlines are short. If you are a surviving spouse who was left out of a will, or you are planning a will that treats a spouse differently from other family members, we can help. Call the Law Offices of Albert Goodwin at (212) 233-1233 to schedule a consultation.

This page is general information about New York law and is not legal advice for any particular estate. Statutory dollar limits and procedures change; confirm the current text of the statutes before relying on them.