When a Husband Dies, What Is the Wife Entitled To in New York?

By Albert Goodwin, Esq., Law Offices of Albert Goodwin, New York, NY

If your husband has died and you live in New York, what you receive depends on four things: what passes to you automatically by title or beneficiary designation, whether he left a will, what the will says, and whether anyone can argue that you lost your rights as a spouse. New York law treats a surviving wife and a surviving husband identically. Every rule below applies to any surviving spouse, including spouses in same-sex marriages. This page uses "husband" and "wife" because that is how most people ask the question.

This guide covers New York only. New York law governs if your husband was domiciled in New York when he died. If he lived in another state, that state's intestacy and spousal-share rules apply to his estate, and you should speak with a lawyer there. Real property located outside New York is generally governed by the law of the state where the land sits.

The short answer

• Exempt property first: up to roughly $92,500 in household items, a car and cash is set aside for you before anyone else is paid (EPTL 5-3.1).
• Property that passes outside the estate: the home if you owned it as tenants by the entirety, joint accounts, accounts naming you as beneficiary, life insurance and most retirement plans go to you directly.
• No will: you receive the entire estate if he had no children, or $50,000 plus one-half of the balance if he had children (EPTL 4-1.1).
• A will that leaves you little or nothing: you can still claim the greater of $50,000 or one-third of his net estate, counting many lifetime transfers and non-probate assets, whether or not he had children (EPTL 5-1.1-A).
• Exceptions: you lose these rights if you were divorced, if the marriage was void, if you abandoned him, or if you signed a valid waiver, usually in a prenuptial agreement (EPTL 5-1.2, 5-1.1-A(e)).

Exempt property: what you take before the estate is divided (EPTL 5-3.1)

New York sets aside certain property for the surviving spouse that is not treated as an asset of the estate at all. It does not pass under the will, it is not counted in the intestate share, and most creditors cannot reach it. Under EPTL 5-3.1, the set-aside includes:

• Household furniture, appliances, housekeeping utensils, musical instruments, clothing, fuel and provisions, up to $20,000 in total value.
• Family pictures, books, computers, discs, software and similar items, up to $2,500.
• Domestic animals with sixty days of feed, farm machinery, one tractor and one lawn tractor, up to $20,000.
• One motor vehicle worth up to $25,000.
• Money or other personal property up to $25,000. If the estate cannot otherwise pay reasonable funeral expenses, this cash is applied to the funeral first.

The categories add up to about $92,500. The dollar limits are fixed in the statute and do not adjust for inflation, so check the current text before relying on them. If there is no surviving spouse, children under twenty-one take the exempt property instead. A spouse who is disqualified under EPTL 5-1.2 (discussed below) loses the set-aside as well.

Property that passes to you outside the estate

A large share of what most widows receive never goes through Surrogate's Court. Before looking at the will or the intestacy statute, identify everything that passes to you by operation of law or by contract:

• The marital home held as tenants by the entirety: a deed to a married couple is presumed to create a tenancy by the entirety. The survivor owns the whole property on the other spouse's death. See our page on a house titled in two names.
• Joint bank and brokerage accounts with right of survivorship: the surviving joint owner takes the account under Banking Law 675. If you were the joint owner, the money is yours. If the joint owner was someone else, half of the account may still count toward your elective share (see below). Our page on joint bank accounts covers the tax side.
• Payable-on-death, in-trust-for (Totten trust) and transfer-on-death accounts: these go to the named beneficiary. If no beneficiary was named, the account falls into the estate. See bank accounts with no beneficiary.
• Life insurance: paid to the named beneficiary. If the policy names the estate or no one, it becomes an estate asset.
• Employer retirement plans (401(k), 403(b), pensions): under federal law (ERISA and Internal Revenue Code 401(a)(11) and 417), a married participant's spouse is the required beneficiary of a qualified plan unless the spouse signed a written, witnessed or notarized waiver. A husband generally cannot name his children on a 401(k) over his wife without her consent. IRAs are not covered by this rule, and an IRA goes to whoever is named.

These assets reach you quickly and without court involvement. For the estate assets, someone must be appointed to collect and distribute them. Our pages on estate administration and the New York probate timeline explain that process.

If your husband died without a will (EPTL 4-1.1)

When a New York domiciliary dies without a will, EPTL 4-1.1 decides who inherits the probate estate, meaning the property that was in his sole name with no beneficiary designation. For a surviving spouse:

• Spouse and no children or descendants: the spouse takes everything.
• Spouse and one or more children (or descendants of a deceased child): the spouse takes $50,000 plus one-half of the balance. The children share the other half, with a deceased child's share passing to that child's own children by representation.

The children's half is divided among all of his children, including children from a prior marriage and children born outside marriage whose paternity is established. Stepchildren who were never adopted do not inherit. If an estate is small, the Surrogate's Court may use the affidavit of heirship and related procedures to confirm who the distributees are.

The $50,000 intestate amount is in addition to the exempt property under EPTL 5-3.1. In a modest estate, those two provisions together may give the spouse everything.

Parents, siblings, nieces, nephews and cousins inherit only if there is no spouse and no descendants. A surviving wife never shares an intestate estate with her husband's parents or siblings.

If your husband left a will: the spousal right of election (EPTL 5-1.1-A)

A valid will controls the probate estate, with one major exception. A New York domiciliary cannot disinherit a spouse. If the will leaves you nothing, or less than your elective share, you may file a right of election and take your share anyway.

How much the elective share is

For a person who died after August 31, 1992, the elective share is the greater of $50,000 or one-third of the net estate. If the net estate is less than $50,000, the share is the entire net estate. The one-third fraction applies whether or not your husband had children. An older rule gave a childless spouse one-half; that rule applies only to deaths before September 1, 1992 and is sometimes repeated online by mistake.

The "net estate" is the probate estate plus testamentary substitutes, less debts, administration expenses and reasonable funeral expenses. Estate taxes are not deducted first.

Testamentary substitutes: lifetime transfers that still count

A husband cannot shrink his wife's share by moving property out of his name during life. EPTL 5-1.1-A(b)(1) adds back the following transfers made after the marriage (and after August 31, 1992) when computing the net estate:

• (A) Gifts made in contemplation of death.
• (B) Gifts made within one year before death, to the extent he did not receive full and adequate consideration. Gifts within the federal annual gift-tax exclusion and direct payments of tuition or medical expenses are excluded.
• (C) Money in Totten trust ("in trust for") accounts.
• (D) Money in joint bank accounts with right of survivorship, to the extent of his contribution.
• (E) Other property held jointly with right of survivorship, or payable on death, to the extent of his contribution.
• (F) Property he transferred while keeping the right to possess or enjoy it, the income from it, or a power to revoke or consume it. This covers revocable trusts and deeds in which he reserved a life estate.
• (G) Retirement, pension, deferred compensation and similar plans. For qualified employer plans subject to the federal spousal-consent rules, only one-half of the account counts. IRAs count in full.
• (H) Property over which he held a presently exercisable general power of appointment.
• (I) Securities registered in transfer-on-death form.

For joint accounts and joint property held with a third person, you have the burden of proving how much of it your husband contributed. Where you were the other joint owner, one-half is counted.

Two common assets are not testamentary substitutes: life insurance proceeds, and gifts made outright more than one year before death with no strings attached. A house deeded to a child three years before death, with no retained interest, does not come back into the calculation even if the child paid nothing.

How the share is paid

The elective share is a net figure. Everything you receive from the estate and from testamentary substitutes is credited against it: your bequest under the will, your intestate share, your half of a joint account, retirement proceeds paid to you, and so on. An interest in trust or a life estate left to you does not count as satisfying the share. You are entitled to the full amount outright. If what you receive is less than the elective share, the other beneficiaries, including people who received testamentary substitutes, contribute the shortfall in proportion to what each received.

Waiver of the right of election

Under EPTL 5-1.1-A(e), a spouse may waive the right of election before or after marriage. The waiver must be in writing, signed, and acknowledged in the manner required for recording a deed. Most waivers appear in prenuptial or postnuptial agreements. Separation agreements frequently include mutual waivers of estate rights as well, so read any agreement you signed before assuming you can elect.

The deadline

Under EPTL 5-1.1-A(d), you must serve a written notice of election on the executor or administrator and file it with the Surrogate's Court within six months after letters testamentary or letters of administration are issued, and in no event later than two years after the date of death. The court can extend the six-month period for reasonable cause on a timely application, but the two-year outer limit is rarely relaxed. Do not wait for the estate to be settled before acting.

A worked example

Assume your husband was a New York domiciliary who died in 2024, you were married in 2005, and every transfer below took place during the marriage. At his death, the only asset in his sole name was a $50,000 bank account. His will leaves $10,000 to his mother and the remainder to you. Here is everything else, and whether it counts toward the net estate for your elective share. The example ignores debts, expenses and the exempt-property set-aside to keep the arithmetic simple.

Why the house counts and the boat timing matters: the boat sale was a below-market transfer within one year of death, so the $60,000 gap between value and price is added back under subparagraph (B). The house sale was three years before death, outside the one-year window, so subparagraph (B) does not reach it. It counts anyway under subparagraph (F) because he reserved a life estate and kept the right to live there. Had he deeded the house to A three years earlier with no reserved interest, the $250,000 gift would not be counted at all.

The IRA counts in full because an IRA is not a plan subject to the federal spousal-consent rules. If this had been a $300,000 401(k) that A received after you signed a valid federal waiver, only $150,000 would count.

Your elective share is the greater of $50,000 or one-third of $745,000, which is $248,333. Under the will you receive the probate residue of $40,000 ($50,000 less the $10,000 to his mother). That $40,000 is credited against your share, leaving a net elective share of $208,333. His mother, daughter A and son B must contribute that amount in proportion to what each of them received from the probate estate and the testamentary substitutes. The Surrogate's Court supervises how the contribution is collected.

Who loses spousal rights (EPTL 5-1.2)

A surviving spouse is treated as if she predeceased, and loses the intestate share, the right of election and the exempt property, if any of the following applies:

• A final judgment of divorce, annulment or dissolution valid under New York law was in effect at death.
• The marriage was void as incestuous, bigamous or a prohibited remarriage.
• The surviving spouse obtained a divorce or annulment outside New York that New York does not recognize.
• A final judgment of separation recognized in New York was rendered against the surviving spouse and was in effect at death. A separation agreement by itself does not disqualify, though it may contain a waiver.
• The surviving spouse abandoned the deceased spouse, and the abandonment continued until death. Abandonment means leaving without justification and without consent, with no intent to return. Living apart by agreement is not abandonment.
• The surviving spouse had the duty and the means to support the deceased spouse and refused to do so, unless support was resumed and continued until death.

The person contesting your status, usually a child or the executor, has the burden of proving disqualification. These disputes are tried in Surrogate's Court and often turn on documents and witness testimony about the couple's living arrangements.

If a divorce was pending when he died

A divorce action ends when a party dies before judgment. The court loses jurisdiction to grant the divorce, and you remain the legal spouse with full rights of election, intestacy and exempt property. The one exception is narrow: if the matrimonial court had already decided every issue and only the ministerial signing of the judgment remained, the judgment may be entered after death, effective as of the earlier date (Cornell v. Cornell, 7 N.Y.2d 164 (1959)).

Two other rules matter in a pending divorce. First, the automatic orders under Domestic Relations Law 236(B)(2)(b) bar either spouse from changing beneficiary designations on life insurance, retirement accounts and similar assets while the action is pending. A change made in violation of those orders can be challenged. Second, once a divorce is final, EPTL 5-1.4 automatically revokes dispositions to the former spouse in a will, revocable trust, beneficiary designation and joint tenancy, unless the instrument says otherwise. If you were divorced and your former husband never updated his will, that revocation will apply to you.

Common-law and out-of-state marriages

New York abolished common-law marriage in 1933 and does not allow one to be formed here. New York does recognize a common-law marriage validly created in a state that permits them, such as Pennsylvania before 2005, Texas or Colorado. If your marriage was never formalized by a license and ceremony, you will have to prove in Surrogate's Court that you and your husband met every element of the other state's common-law marriage rules while living or present there. If you succeed, you have the same rights as any other surviving spouse, including the right of election. New York also recognizes marriages validly performed in other states and countries, including same-sex marriages performed before New York's Marriage Equality Act.

Your role in the estate

• Priority to serve as administrator: if there is no will, SCPA 1001 gives the surviving spouse first priority to receive letters of administration, provided you are eligible under SCPA 707 (an adult, not a felon, not otherwise disqualified).
• Standing to object to the will: as a distributee, you are entitled to notice of the probate proceeding and may file objections if you believe the will is invalid because of lack of capacity, undue influence, fraud or improper execution. See will contests. Electing against a will and contesting it are separate remedies, and you may need to pursue both.
• Right to an accounting: as a beneficiary or electing spouse you may compel the executor to account for how the estate was handled.
• Debts: you are generally not personally liable for your husband's debts unless you co-signed or the debt was for necessaries. The estate pays his debts before distribution. See am I responsible for my spouse's debt in New York.
• Estate tax: property passing to a surviving spouse who is a U.S. citizen qualifies for the unlimited marital deduction under both federal and New York estate tax. Non-citizen spouses face additional rules.

Social Security and pension survivor benefits

These are not inheritance, but they are often the largest ongoing benefit a widow receives. A surviving spouse can collect Social Security survivor benefits as early as age 60 (age 50 if disabled), at a reduced rate, or 100 percent of the deceased worker's benefit at full retirement age. If your husband claimed his own retirement benefit early, the survivor benefit is based on that reduced amount, subject to a floor. A surviving spouse caring for the deceased's child under 16 can receive benefits at any age. A one-time $255 death payment is also available. Remarriage before age 60 generally ends eligibility. Employer pensions and union death benefits have their own rules and deadlines, so contact the plan administrator promptly.

Frequently asked questions

Can my husband disinherit me in New York?

No. A New York domiciliary cannot leave a spouse less than the greater of $50,000 or one-third of the net estate, including testamentary substitutes, unless the spouse signed a valid written waiver or is disqualified under EPTL 5-1.2.

Does it matter whether we had children?

For intestacy, yes: with children you receive $50,000 plus one-half instead of everything. For the elective share, no: the one-third fraction applies with or without children for anyone who died after August 31, 1992.

My husband left everything to me in a trust. Do I have to accept that?

No. An income interest or life estate does not satisfy the elective share. You may elect to take your one-third outright, and the trust is reduced accordingly.

He put the house in his daughter's name years ago. Is it gone?

It depends on what he kept. If he reserved a life estate or kept living there under a retained right, the transfer counts as a testamentary substitute. If he gave it away outright more than a year before death, it does not count.

How long do I have to file the right of election?

Six months from the issuance of letters, and never more than two years after death, under EPTL 5-1.1-A(d).

We were separated but never divorced. Do I still inherit?

Usually yes. Separation alone does not disqualify you. You lose your rights only if a judgment of separation was entered against you, you abandoned him, you failed to support him when you had the duty and means, or you waived your rights in a separation agreement.

Speak with a New York estate lawyer

Figuring out what you are entitled to usually means gathering records of every account, deed and beneficiary designation, then applying EPTL 4-1.1, 5-1.1-A, 5-3.1 and 5-1.2 to them with the deadlines in mind. If the executor or your husband's children are telling you that you receive nothing, or that a transfer made before death is beyond your reach, that is often wrong. The Law Offices of Albert Goodwin represents surviving spouses in Surrogate's Court proceedings throughout New York City and Long Island, with offices in Manhattan, Brooklyn and Queens. Call 212-233-1233 or email [email protected] to discuss your situation.

This page provides general information about New York law and is not legal advice. Statutory dollar amounts and deadlines are those in effect at the time of writing and can change. Consult an attorney about your specific circumstances.