Elective Share Attorney New York

When a spouse passes away in New York, the surviving spouse is not left without protection—even if the deceased spouse's will leaves them little or nothing. New York law grants surviving spouses a powerful legal right known as the elective share, which guarantees a minimum portion of the deceased spouse's estate regardless of what the will or other estate planning documents may say.

Navigating the elective share process can be complex, time-sensitive, and emotionally challenging. Our New York elective share attorneys help surviving spouses understand and assert their rights, calculate what they are entitled to receive, and pursue their lawful inheritance through the proper legal channels. We also assist executors, administrators, and beneficiaries who need guidance when an elective share claim affects an estate.

What Is the Elective Share in New York?

The elective share is a statutory right under New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A that allows a surviving spouse to claim a fixed portion of their deceased spouse's estate, even if the deceased attempted to disinherit them. This protection reflects a longstanding public policy in New York: a person should not be able to completely cut their spouse out of their inheritance.

In essence, the elective share prevents one spouse from leaving the other destitute. Without this right, a spouse could theoretically leave their entire estate to a friend, a charity, or a child from a previous marriage, leaving their surviving husband or wife with nothing. The elective share ensures that the surviving spouse receives a meaningful share of the marital wealth.

How Much Is the New York Elective Share?

Under New York law, the elective share is equal to the greater of $50,000 or one-third (1/3) of the deceased spouse's net estate. The "net estate" includes more than just the property that passes through the will. It also includes certain assets that the deceased may have attempted to transfer outside of probate.

To illustrate:

• If the net estate is worth $120,000, the surviving spouse may claim one-third, which equals $40,000—but because the minimum is $50,000, the spouse would receive $50,000.
• If the net estate is worth $900,000, the surviving spouse may claim one-third, which equals $300,000.

The exact calculation depends on the composition of the estate and the assets included in the elective share base, which is why working with an experienced attorney is essential to ensuring you receive the full amount to which you are entitled.

What Assets Are Included in the Elective Share?

One of the most important—and frequently misunderstood—aspects of the elective share is that it is not calculated solely on the basis of probate assets. New York law includes a category of assets called testamentary substitutes in the elective share calculation. These are assets that the deceased spouse arranged to pass outside of the will, often in an attempt to reduce the surviving spouse's share.

Testamentary substitutes that may be included in the elective share base include:

• Gifts made in contemplation of death (gifts causa mortis)
• Gifts made within one year of death that exceed the annual exclusion amount
• Joint bank accounts and Totten trusts (payable-on-death accounts)
• Property held in joint tenancy with right of survivorship
• Certain transfers where the deceased retained the right to income or the power to revoke, such as revocable trusts
• Retirement accounts and pension plans, subject to certain limitations
• Money payable under government bonds and similar instruments

By including testamentary substitutes, New York law prevents a spouse from circumventing the elective share through clever estate planning. This is critical because individuals sometimes attempt to move assets into joint accounts, trusts, or beneficiary designations specifically to deprive their spouse of an inheritance. An experienced elective share attorney can identify these assets and ensure they are properly counted.

Who Is Eligible to Claim the Elective Share?

The right to an elective share belongs exclusively to a surviving spouse. To qualify, the person claiming the elective share must have been legally married to the deceased at the time of death. However, certain circumstances can disqualify a surviving spouse from claiming the elective share, even if they were technically married.

Circumstances That May Disqualify a Surviving Spouse

Under EPTL § 5-1.2, a spouse may be deemed to have forfeited or lost their elective share rights in situations including:

• A final decree or judgment of divorce, annulment, or dissolution of the marriage that was valid under New York law
• Abandonment of the deceased spouse by the surviving spouse, where the abandonment continued until the time of death
• Failure to support the deceased spouse when the surviving spouse had a duty to do so
• A marriage that was void as incestuous, bigamous, or prohibited
• The surviving spouse procured a divorce or annulment that was not recognized as valid in New York

These disqualification issues are frequently litigated and can become highly contentious. If you are a surviving spouse facing a challenge to your elective share rights, or if you are an executor who believes a spouse should be disqualified, our attorneys can evaluate the facts and represent your interests effectively.

The Deadline to File for the Elective Share

One of the most critical things to understand about the elective share is that it must be claimed within a strict deadline. A surviving spouse who fails to act in time may lose this valuable right entirely.

Under New York law, the surviving spouse must make a written election within six months after the issuance of letters testamentary or letters of administration. In addition, the election generally must be made no later than two years after the date of death.

The election must be served on the personal representative of the estate and filed with the Surrogate's Court where the estate is being administered. Because these deadlines are firm, it is essential to consult with an attorney as soon as possible after the death of your spouse. Waiting too long can result in the permanent loss of your inheritance rights.

In some cases, the court may grant an extension of time to make the election, but this requires showing reasonable cause and filing a request before the original deadline expires. An experienced elective share attorney can help you meet these deadlines and protect your rights.

How the Elective Share Process Works

Claiming the elective share involves several steps, and the process must be handled with care to ensure compliance with New York law.

Step 1: Determine Eligibility

The first step is confirming that you qualify as a surviving spouse and that no disqualifying circumstances apply. Your attorney will review the marriage, any divorce or separation proceedings, and other relevant facts.

Step 2: Identify and Value the Estate

Next, your attorney will work to identify all assets that make up the net estate, including both probate assets and testamentary substitutes. This often requires investigation into bank accounts, real estate holdings, trusts, retirement accounts, and lifetime transfers. Proper valuation is critical because it directly affects the amount of your elective share.

Step 3: File the Notice of Election

Once eligibility and estate value are established, your attorney will prepare and file the formal written notice of election with the Surrogate's Court and serve it on the estate's personal representative within the required deadline.

Step 4: Calculate and Satisfy the Elective Share

After the election is made, the elective share amount must be calculated and satisfied from the estate's assets. The way the share is funded depends on the structure of the estate and may involve contributions from beneficiaries who received testamentary substitutes. This stage can become complicated, particularly when the estate includes trusts or assets held jointly with other people.

Step 5: Resolve Disputes

If the executor, other beneficiaries, or interested parties dispute the elective share claim, litigation in Surrogate's Court may be necessary. Disputes can arise over whether the spouse is disqualified, whether certain assets count as testamentary substitutes, and how the share should be funded.

Common Disputes in Elective Share Cases

Elective share matters frequently give rise to disputes among family members and beneficiaries. Some of the most common issues we handle include:

• Disputes over abandonment or lack of support—where the estate argues the surviving spouse forfeited their rights
• Disagreements about which assets are testamentary substitutes—a key factor that affects the size of the elective share
• Challenges to the validity of the marriage—including allegations that the marriage was bigamous or otherwise void
• Disputes over asset valuation—particularly for real estate, business interests, and closely held assets
• Hidden or transferred assets—where the deceased spouse attempted to conceal wealth or move it out of reach
• Funding disputes—involving how beneficiaries must contribute to satisfy the elective share

These disputes can be emotionally and financially significant. Having a knowledgeable attorney on your side ensures that your rights are protected and that the law is applied correctly.

Can the Elective Share Be Waived?

Yes. A spouse may waive or release the right to an elective share, either before or after marriage. This is commonly done through a prenuptial or postnuptial agreement. To be valid, the waiver must be in writing, signed by the waiving party, and acknowledged in the manner required for recording a deed.

If you signed a prenuptial or postnuptial agreement, it is important to have it reviewed by an attorney to determine whether it validly waives your elective share rights. In some cases, such agreements may be challenged on the grounds that they were not properly executed, were the product of fraud or duress, or were unconscionable. Our attorneys can evaluate the enforceability of any waiver and advise you on your options.

Elective Share and Estate Planning

For individuals planning their estates, understanding the elective share is essential. Because a spouse cannot be fully disinherited without a valid waiver, estate plans must account for the elective share to avoid unintended consequences and costly litigation after death.

Proper planning may involve providing for the spouse in a way that satisfies the elective share, obtaining a valid waiver through a marital agreement, or structuring assets to comply with the law. Failing to plan around the elective share can lead to disputes that disrupt the deceased's intentions and burden the estate with litigation. Our firm advises clients on how to plan responsibly and protect their loved ones.

Why You Need an Experienced Elective Share Attorney

The elective share is a valuable right, but asserting it correctly requires a thorough understanding of New York law and procedure. The rules governing testamentary substitutes, deadlines, disqualification, and funding are technical and often misunderstood. Mistakes can result in the loss of substantial inheritance rights.

An experienced elective share attorney can help you by:

• Determining whether you qualify for the elective share
• Investigating and valuing all assets, including hidden testamentary substitutes
• Filing the notice of election correctly and on time
• Negotiating with the executor and other beneficiaries
• Litigating disputes in Surrogate's Court when necessary
• Defending against improper challenges to your spousal rights

For executors and administrators, we also provide guidance on responding to elective share claims, properly funding the share, and protecting the estate from unwarranted demands.

Frequently Asked Questions About the New York Elective Share

Does the elective share apply if there is no will?

Yes. The elective share applies whether or not the deceased spouse left a will. If the spouse died without a will (intestate), the surviving spouse already receives a share under New York's intestacy laws, but the elective share remains relevant when the intestate share would be less than the guaranteed minimum.

Can I claim the elective share if my spouse left me something in the will?

Yes. Even if you were left a bequest, you may still be entitled to claim the elective share if what you received is less than your guaranteed one-third (or $50,000 minimum). The amount you already received is credited toward the elective share.

What happens if I miss the deadline?

Generally, missing the deadline to file the notice of election results in the loss of your elective share rights. This is why it is critical to consult an attorney promptly after your spouse's death. In limited circumstances, courts may grant extensions, but you should never rely on this possibility.

Are domestic partners entitled to an elective share?

No. The elective share is available only to legally married surviving spouses. Domestic partners who were not legally married do not have elective share rights under New York law.

Contact a New York Elective Share Attorney Today

If your spouse has passed away and you believe you may have been left less than your fair share, or if you are facing a dispute involving spousal inheritance rights, time is of the essence. The elective share is a powerful protection under New York law, but it must be asserted properly and within strict deadlines.

Our experienced New York elective share attorneys are here to guide you through every step of the process, protect your rights, and pursue the inheritance to which you are lawfully entitled. We provide compassionate, knowledgeable representation for surviving spouses, executors, and beneficiaries throughout New York. Contact our office today to schedule a consultation and learn how we can help you protect what is rightfully yours.

You can contact us by phone at 212-233-1233 or by email at [email protected].