When a spouse dies in New York, the surviving spouse is not left without protection, even if the will leaves the survivor little or nothing. New York law gives a surviving spouse the elective share: a guaranteed minimum portion of the deceased spouse’s estate, regardless of what the will or the other estate planning documents say. We help surviving spouses assert the election and work out what it is worth, and we advise executors, administrators and beneficiaries who have to respond to a claim.
What Is the Elective Share in New York?
The elective share is a statutory right under EPTL § 5-1.1-A that lets a surviving spouse claim a fixed portion of the deceased spouse’s estate even if the deceased tried to disinherit them. It reflects a long-standing New York policy that a person should not be able to cut a spouse out entirely. Without it, a spouse could leave the whole estate to a friend, a charity or a child from a previous marriage and leave the surviving husband or wife with nothing.
How Much Is the New York Elective Share?
The elective share is the greater of $50,000 or one-third of the deceased spouse’s net estate. The net estate is more than the property passing under the will; it also includes certain assets the deceased arranged to pass outside probate, discussed below. Two examples show how the floor works.
| Net estate | One-third | Elective share |
|---|---|---|
| $120,000 | $40,000 | $50,000, because the statutory minimum is higher than one-third. |
| $900,000 | $300,000 | $300,000. |
The exact figure depends on the composition of the estate and on which assets are pulled into the elective share base, which is where most of the work in these cases is done.
What Assets Are Included in the Elective Share?
The most important and most often misunderstood feature of the elective share is that it is not calculated on probate assets alone. New York adds a category of assets called testamentary substitutes: property the deceased spouse arranged to pass outside the will, often precisely in order to reduce the surviving spouse’s share.
| Testamentary substitute | Note |
|---|---|
| Gifts made in contemplation of death (gifts causa mortis) | Counted in full. |
| Gifts made within one year of death | To the extent they exceed the annual exclusion amount. |
| Joint bank accounts and Totten trusts (payable-on-death accounts) | Counted. |
| Property held in joint tenancy with right of survivorship | Counted. |
| Transfers in which the deceased kept the right to income or the power to revoke, such as revocable trusts | Counted. |
| Retirement accounts and pension plans | Subject to certain limitations. |
| Money payable under government bonds and similar instruments | Counted. |
By counting testamentary substitutes, the statute stops a spouse from defeating the election through clever planning. People do sometimes move assets into joint accounts, trusts or beneficiary designations specifically to keep them from a spouse, and identifying those assets and getting them counted is often the difference between a small election and a meaningful one.
Who Is Eligible to Claim the Elective Share?
The right belongs only to a surviving spouse: someone legally married to the deceased at the time of death. Even a legally married spouse can lose the right, however.
-
Circumstances That May Disqualify a Surviving Spouse
Under EPTL § 5-1.2, a spouse may be treated as having forfeited the election where there was a final decree or judgment of divorce, annulment or dissolution of the marriage valid under New York law; where the surviving spouse abandoned the deceased and the abandonment continued until death; where the surviving spouse failed to support the deceased while under a duty to do so; where the marriage was void as incestuous, bigamous or prohibited; or where the surviving spouse procured a divorce or annulment that New York does not recognize as valid. These disqualification issues are litigated often and can be bitterly contested. A surviving spouse facing a disqualification claim, and an executor who believes a spouse should be disqualified, each need the facts developed carefully.
The Deadline to File for the Elective Share
The election must be made within a strict deadline, and a surviving spouse who misses it can lose the right entirely. The surviving spouse must make a written election within six months after the issuance of letters testamentary or letters of administration, and in any event generally no later than two years after the date of death. The election is served on the personal representative of the estate and filed with the Surrogate’s Court where the estate is being administered.
The court may extend the time to elect, but only on a showing of reasonable cause and only on a request made before the original deadline runs. In practice the safe course is to consult a lawyer promptly after the death, while the estate is still being opened.
How the Elective Share Process Works
Claiming the elective share involves several steps, each of which has to be handled correctly.
-
Determine eligibility
Confirm that you qualify as a surviving spouse and that no disqualifying circumstance applies. This means reviewing the marriage, any divorce or separation proceedings, and the history of the relationship.
-
Identify and value the estate
Identify every asset in the net estate, probate assets and testamentary substitutes alike. This usually means investigating bank accounts, real estate, trusts, retirement accounts and lifetime transfers. Valuation matters because it sets the amount of the share.
-
File the notice of election
Prepare the written notice of election, file it with the Surrogate’s Court and serve it on the estate’s personal representative within the deadline.
-
Calculate and satisfy the share
Once the election is made, the share is calculated and paid from the estate’s assets. How it is funded depends on the structure of the estate and may require contributions from beneficiaries who received testamentary substitutes. This stage gets complicated when the estate includes trusts or property held jointly with other people.
-
Resolve disputes
If the executor, other beneficiaries or interested parties dispute the claim, the matter is litigated in Surrogate’s Court. Disputes usually concern whether the spouse is disqualified, whether particular assets are testamentary substitutes, and how the share should be funded.
Common Disputes in Elective Share Cases
Elective share matters regularly produce disputes among family members and beneficiaries. The issues that come up most often fall into a few categories.
| Dispute | What is at stake |
|---|---|
| Abandonment or lack of support | The estate argues the surviving spouse forfeited the right altogether. |
| Which assets are testamentary substitutes | Directly determines the size of the net estate and therefore of the share. |
| Validity of the marriage | Allegations that the marriage was bigamous or otherwise void would eliminate the claim. |
| Asset valuation | Real estate, business interests and closely held assets can be valued very differently by each side. |
| Hidden or transferred assets | Whether wealth the deceased concealed or moved out of reach can be found and counted. |
| Funding | How much each beneficiary must contribute to satisfy the share. |
Can the Elective Share Be Waived?
Yes. A spouse may waive or release the right to an elective share before or after the marriage, most commonly in 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 such an agreement, it should be reviewed to determine whether it actually waives the elective share; agreements are sometimes challenged as improperly executed, procured by fraud or duress, or unconscionable.
Elective Share and Estate Planning
For someone planning an estate, the elective share is a constraint that has to be designed around. Because a spouse cannot be fully disinherited without a valid waiver, a plan that ignores the election invites litigation after death and can disrupt the whole disposition. Sound planning means providing for the spouse in a way that satisfies the share, obtaining a valid waiver through a marital agreement, or structuring assets with the statute in mind.
What an Elective Share Attorney Does
The rules on testamentary substitutes, deadlines, disqualification and funding are technical, and mistakes can cost a surviving spouse a substantial part of the inheritance. For a surviving spouse, our work is confirming eligibility, investigating and valuing every asset including testamentary substitutes that are not obvious, filing the notice of election correctly and on time, negotiating with the executor and the other beneficiaries, litigating in Surrogate’s Court when necessary, and defending against improper challenges to the spouse’s rights. For executors and administrators, we advise on responding to a claim, funding the share properly, and protecting the estate from demands that go beyond what the statute allows.
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 intestate, the surviving spouse already takes a share under New York’s intestacy laws, but the election 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 elect if what you received is less than your one-third (or the $50,000 minimum). What you already received is credited against the elective share.
-
What happens if I miss the deadline?
As a rule, missing the deadline to file the notice of election means losing the right. Courts can extend the time in limited circumstances, but no one should rely on that possibility.
-
Are domestic partners entitled to an elective share?
No. The elective share is available only to legally married surviving spouses. A domestic partner who was not legally married has no elective share rights under New York law.
Contact a New York Elective Share Attorney
If your spouse has died and you believe you were left less than the law guarantees, or you are an executor or beneficiary facing an election, the deadlines are short and the calculation depends on facts that have to be gathered early. Call us at 212-233-1233 or write to [email protected].
