EPTL 5-1.1-A: The Spousal Right of Election — How the Elective Share Works

New York law does not allow one spouse to completely disinherit the other. Under EPTL 5-1.1-A, a surviving spouse has the right to "elect against" the deceased spouse's estate plan and take a guaranteed minimum share — called the elective share — regardless of what the will says, and regardless of how much property the decedent moved outside the will through joint accounts, beneficiary designations, or revocable trusts. This page explains, in plain language, how the statute works, what counts toward the share, how the election is made in Surrogate's Court, and the deadlines that can extinguish the right entirely if missed.

Who Has the Right of Election

EPTL 5-1.1-A applies to the estates of decedents dying on or after September 1, 1992, who were domiciled in New York at death. (For a non-domiciliary who left property in New York, the right generally exists only if the decedent elected in the will to have New York law govern under EPTL 3-5.1(h).) The right belongs only to a legally recognized surviving spouse. A former spouse — or a spouse disqualified under EPTL 5-1.2, discussed below — has no right of election.

The Amount of the Elective Share

Under EPTL 5-1.1-A(a)(2), the elective share is a pecuniary amount equal to the greater of:

• $50,000 (or, if the net estate is less than $50,000, the entire net estate), or
• one-third (1/3) of the net estate.

The "net estate" is the estate reduced by debts, administration expenses, and reasonable funeral expenses — but calculated before estate taxes — and, critically, it includes not only probate assets passing under the will but also testamentary substitutes.

Testamentary Substitutes Under EPTL 5-1.1-A(b)

The statute's real power lies in EPTL 5-1.1-A(b)(1), which pulls non-probate transfers back into the calculation. Without this rule, a decedent could defeat the elective share simply by titling everything in joint name or naming beneficiaries. Testamentary substitutes include:

• Gifts causa mortis (gifts made in contemplation of impending death);
• Gifts made within one year of death, to the extent each gift exceeds the federal gift tax annual exclusion;
• Totten trust bank accounts ("in trust for" accounts);
• Joint bank accounts, to the extent of the decedent's contributions;
• Jointly held property and property payable on death — generally one-half, unless the survivor's contribution can be proven otherwise (for tenancies by the entirety, one-half);
• Revocable lifetime transfers, including revocable trusts and any transfer in which the decedent retained the income, possession, or a power to revoke or invade;
• Retirement accounts and death benefits, including IRAs and deferred compensation; for certain employer plans subject to the federal qualified-plan spousal annuity rules, only fifty percent is treated as a testamentary substitute;
• Property over which the decedent held a presently exercisable general power of appointment.

Important exclusion: life insurance proceeds payable to a named beneficiary are not testamentary substitutes under EPTL 5-1.1-A. This is one of the most consequential gaps in the statute and figures prominently in both estate planning and elective share litigation.

A Worked Example

Suppose a decedent dies with:

• A probate estate of $600,000 passing under the will;
• A Totten trust account of $150,000 payable to a sibling;
• A joint bank account of $150,000, funded entirely by the decedent, passing to a child from a prior marriage;
• Debts, funeral, and administration expenses of $60,000.

The net estate is $600,000 + $150,000 + $150,000 − $60,000 = $840,000. The elective share is the greater of $50,000 or one-third of $840,000, i.e., $280,000.

If the will leaves the surviving spouse $100,000 outright and nothing else passes to the spouse, the spouse who files a valid election is entitled to an additional $180,000 ($280,000 − $100,000). Under EPTL 5-1.1-A(c)(2), the other beneficiaries — including the recipients of the testamentary substitutes — must contribute ratably, in proportion to what each received, to make up the shortfall.

What Counts Toward Satisfying the Share — Trusts Do Not

Only property passing to the spouse absolutely and outright — under the will, by intestacy, or as a testamentary substitute — counts against the elective share. Under EPTL 5-1.1-A(a)(4), an interest in a trust (including a life income interest) does not count. A decedent cannot satisfy the elective share by leaving the spouse income from a trust, no matter how generous. A spouse left "income for life" from the entire estate may still elect and take one-third outright; if the spouse elects, the terms of the instrument otherwise remain effective to the extent possible, with the elective share carved out first.

How to Make the Election: Procedure in Surrogate's Court

The election is governed by EPTL 5-1.1-A(d). The procedural steps are:

1. Prepare a written notice of election, signed and acknowledged by the surviving spouse in the manner required for the recording of a deed.
2. Serve the notice on the executor or administrator, either personally or by certified mail, return receipt requested.
3. File and record the original notice, with proof of service, in the Surrogate's Court where the will was probated or letters of administration were issued.
4. If beneficiaries dispute the election, the calculation of the net estate, or the spouse's status, the issues are litigated in the Surrogate's Court — commonly in the accounting proceeding or in a separate proceeding to determine the validity of the election.

Deadlines

The deadlines under EPTL 5-1.1-A(d)(1) are strict:

• The election must be made within six months from the date letters testamentary or letters of administration are issued;
• In no event later than two years after the date of death.

The Surrogate's Court may extend the time for reasonable cause shown on application made within the election period, and may in limited circumstances relieve a spouse from a default. But extensions are discretionary and relief from default is never guaranteed — a spouse who suspects disinheritance should act well before the six-month mark, and should not wait for estate litigation to resolve before filing.

Waiver of the Right of Election

Under EPTL 5-1.1-A(e), a spouse may waive the right of election — wholly or partially, and as to particular property — before or after marriage. This is the standard mechanism in prenuptial and postnuptial agreements. To be valid, the waiver must be in writing, subscribed by the waiving spouse, and acknowledged or proved in the manner required for recording a deed. Waivers are frequently challenged on grounds of fraud, duress, overreaching, or defective acknowledgment, and the validity of a waiver is often the central battleground in elective share litigation.

Disqualification Under EPTL 5-1.2

A surviving spouse loses the right of election if disqualified under EPTL 5-1.2, which applies where:

• A final judgment of divorce or annulment was in effect at death;
• The surviving spouse procured a divorce or annulment not recognized as valid in New York;
• A final decree of separation was rendered against the surviving spouse;
• The surviving spouse abandoned the decedent, and the abandonment continued until death; or
• The surviving spouse failed or refused to support the decedent despite having the means or ability to do so.

Abandonment and failure to support are fact-intensive defenses that estate beneficiaries frequently raise to defeat an election, and the burden of proving disqualification rests on the party asserting it.

Common Pitfalls

• Missing the six-month deadline after letters issue — the single most common and most damaging error.
• Serving but not filing (or filing but not serving) the notice of election; the statute requires both.
• Assuming life insurance counts. It does not — either toward the net estate or toward satisfying the spouse's share.
• Accepting a trust interest as satisfaction. A trust for the spouse does not reduce the elective share; the spouse may still elect.
• Overlooking testamentary substitutes. Executors sometimes calculate the share on the probate estate alone; the spouse is entitled to discovery of joint accounts, Totten trusts, retirement designations, and transfers within one year of death.
• Ignoring the exempt property set-aside. Under EPTL 5-3.1, certain family exemption property passes to the spouse in addition to — not in place of — the elective share.
• Relying on an unacknowledged waiver. A waiver lacking a proper acknowledgment may be unenforceable even if signed.

Elective share matters involve unforgiving deadlines, contested asset tracing, and litigation over waivers and disqualification in Surrogate's Court. Attorney Albert Goodwin represents surviving spouses, executors, and beneficiaries throughout New York in right of election proceedings under EPTL 5-1.1-A and related estate disputes.

Related resources on this site: spousal right of election, elective share attorney.