Mr. Goodwin is everything you want in an attorney: professional, honest, thorough, and genuinely caring. He always explains things clearly, so I understood exactly what was happening and what to expect next. His attention to detail and persistence really stood out. Looking back, I feel lucky to have found him. He guided me through the whole process expertly, and I deeply appreciate all his hard work. Would definitely recommend him to anyone needing legal help.
Call Today:
212-233-1233
EPTL 5-3.1: The Family Exemption — Property Set Aside Before the Estate Is Distributed
When a New York resident dies, not everything they owned becomes part of their estate. Estates, Powers and Trusts Law (EPTL) § 5-3.1 carves out specific categories of property, up to $92,500 in total value, that pass immediately to the surviving spouse or, if there is no spouse, to the decedent’s children under the age of twenty-one. This is known as the family exemption, or the exempt property set-off. Because this property is not an estate asset at all, it is not controlled by the will, it does not pass under the intestacy rules, and with one narrow exception it is not available to the decedent’s creditors.
The purpose of the statute is practical. It ensures that a surviving spouse or minor children are not left without a car, household furnishings and a basic cash cushion while the estate winds through Surrogate’s Court administration, which can take months or years.
What EPTL 5-3.1 Exempts
EPTL 5-3.1(a) lists five categories of property, each with its own dollar cap. The values below reflect the amounts set by the 2010 amendments, which apply to the estates of decedents dying on or after their effective date.
| Category (EPTL 5-3.1(a)) | Maximum Value |
|---|---|
| (a)(1) Housekeeping utensils, musical instruments, sewing machine, household furniture and appliances, electronic and photographic devices, fuel, and provisions | $20,000 |
| (a)(2) Family bible, religious books, family pictures, books, videotapes, computer discs, software, and DVDs | $2,500 |
| (a)(3) Domestic animals with sixty days’ food, farm machinery, one tractor, and one lawn tractor | $20,000 |
| (a)(4) One motor vehicle | $25,000 |
| (a)(5) Money or other personal property | $25,000 |
| Maximum total | $92,500 |
Three refinements in the statutory text matter in practice. First, there is no cash substitution for categories (1) through (3): if the decedent did not own the furniture, books, animals or farm equipment described, the spouse does not receive money in their place. Those exemptions apply only to property actually in existence at death. Second, the motor vehicle is different. Under EPTL 5-3.1(a)(4), the surviving spouse may elect to take cash of up to $25,000 in lieu of the vehicle, which is useful where the spouse does not drive or the estate would rather sell the car. Third, funeral expenses come first out of the cash exemption. If the other estate assets are insufficient to pay reasonable funeral expenses, the fiduciary must apply the $25,000 exempt money under (a)(5) to the funeral bill first, and only the balance passes to the spouse or children.
How Exempt Property Interacts With the Will, Intestacy and the Elective Share
Exempt property vests in the surviving spouse (or qualifying children) by operation of law at the moment of death. The will cannot take it away: even if the will leaves everything to someone else, the spouse still receives the 5-3.1 set-off. It is in addition to the intestate share. If the decedent died without a will, the spouse receives exempt property first, and the EPTL 4-1.1 intestate distribution is computed on what remains.
It is also in addition to the elective share. Exempt property is excluded from the net estate when calculating the spousal right of election under EPTL 5-1.1-A, so a disinherited spouse can claim both. And creditors generally cannot reach it. Apart from the funeral-expense priority described above, exempt property is shielded from estate creditors; in an insolvent estate, it is often the only property the family keeps.
Worked Example
Suppose a decedent dies leaving a spouse, a will disinheriting her, and the following personal property: household furnishings appraised at $14,000, a car worth $18,000, and $60,000 in a bank account in his sole name. The estate owes $9,000 in funeral expenses and $75,000 to credit card creditors.
The spouse receives the furnishings ($14,000, under the $20,000 cap) and the car ($18,000, under the $25,000 cap) outright. From the $60,000 account, $25,000 is exempt money under (a)(5). Because $35,000 remains in the estate, enough to pay the $9,000 funeral bill, the spouse takes the full $25,000. Only the remaining $35,000 is an estate asset, from which funeral expenses, administration expenses and creditors are paid in the order fixed by SCPA 1811. The credit card creditors take a loss; they have no claim against the $57,000 in exempt property. The spouse may then separately assert her elective share under EPTL 5-1.1-A against whatever net estate remains.
Who Qualifies, and Who Is Disqualified
The set-off runs first to the surviving spouse. If there is no surviving spouse, it runs to the decedent’s children under twenty-one years of age, collectively. If there is neither, EPTL 5-3.1 simply does not apply and all property is administered as part of the estate.
A spouse who is disqualified under EPTL 5-1.2, for example by a final divorce, an abandonment of the decedent, or a failure to support, loses the exemption along with other spousal rights. A divorce also automatically revokes testamentary dispositions to the former spouse under EPTL 5-1.4, so a former spouse generally takes nothing under either the will or the family exemption.
Procedure in Surrogate’s Court
Set-off by the fiduciary
The executor or administrator identifies the exempt items and money, values them as of the date of death, and turns them over to the spouse (or the guardian of minor children). The set-off should be reflected in the estate inventory and later in the fiduciary’s accounting, showing the property as excluded from estate assets.
Small estates
Exempt property is not counted toward the $50,000 ceiling for voluntary administration under SCPA Article 13. An estate holding $130,000 in personal property may still qualify as a small estate if $92,500 of it is exempt under EPTL 5-3.1, a cost-saving point that is frequently missed.
Compelling a reluctant fiduciary
If the executor refuses to turn over exempt property, a common scenario where the executor is a child from a prior marriage who is hostile to the surviving spouse, the spouse may petition the Surrogate’s Court under SCPA 2102 for an order directing delivery. Where a third party holds the property, a discovery proceeding under SCPA 2103 may be appropriate.
Valuation disputes
If the parties disagree about whether a vehicle or furnishings exceed the statutory caps, the court resolves the issue on appraisal evidence, valuing the property as of the date of death.
Common Pitfalls
| Mistake | Consequence |
|---|---|
| Distributing before setting off | A fiduciary who pays creditors or beneficiaries out of funds that should have been set aside for the spouse faces personal surcharge liability at the accounting. |
| Assuming jointly held or beneficiary-designated assets count | The exemption applies to property the decedent owned that would otherwise be an estate asset. Joint accounts and payable-on-death assets pass outside the estate on their own terms. |
| Confusing exempt property with a bequest | Exempt property is not a testamentary disposition, so accepting it waives no other rights, and it is not affected by will contests. It need not be renounced under EPTL 2-1.11 unless the spouse affirmatively wishes to decline it in writing. |
| Forgetting the funeral-expense priority | In thin estates, the $25,000 cash exemption shrinks dollar-for-dollar to cover reasonable funeral costs before anything passes to the family. |
| Waiting too long | There is no fixed statute of limitations for claiming the set-off, but once the estate is fully distributed and the fiduciary discharged, recovering exempt property becomes far more difficult. Assert the claim in writing early in the administration. |
Is an Executor Withholding Exempt Property?
If you are a surviving spouse and the executor refuses to turn over the car, the furnishings or the $25,000 cash set-off, we petition the Surrogate’s Court to compel delivery and, where warranted, to surcharge the fiduciary. If you are an executor or administrator, we make sure the set-off is valued, documented and reflected in your accounting so you are not personally liable later. Call us at 212-233-1233 or email [email protected].
About the Author
Albert Goodwin Esq. is a licensed New York attorney with over 18 years of courtroom experience. His extensive knowledge and experience make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
