In New York, the Elective Share is a legal right that protects a surviving spouse from being completely disinherited by allowing them to claim a statutory portion of the decedent’s estate, regardless of the will’s provisions. This right is governed by New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A.
Key Points About Elective Share Rights in New York:
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Amount of the Elective Share:
The surviving spouse is entitled to the greater of one-third (1/3) of the decedent’s net estate or $50,000. If the estate is valued at $50,000 or less, the spouse is entitled to the entire estate. This calculation excludes life insurance proceeds owned by the decedent at death but includes probate assets, joint property, Totten Trust accounts, gifts made in contemplation of death, and assets with Pay On Death designations. -
Scope of the Elective Share:
The elective share applies not only to assets passing through the will but also to certain non-probate assets such as joint bank accounts, real property held jointly, Totten Trust accounts, and some lifetime gifts. Life insurance proceeds are generally excluded from the elective share calculation. -
Right of Election Process:
The surviving spouse must formally exercise this right by serving a Notice of Election on the estate’s executor or administrator and filing it with the Surrogate’s Court. This must be done within six months after Letters Testamentary or Letters of Administration are issued, though extensions may be granted for reasonable cause, not exceeding two years after the decedent’s death. -
Limitations and Waivers:
The right of election can be waived by the surviving spouse, or lost if not timely asserted. It may also be denied if the spouse engaged in disqualifying conduct such as abandonment, failure to support, or divorce prior to the decedent’s death. -
Example:
If the decedent’s estate (excluding life insurance) is valued at $1,530,000, the elective share would be one-third, or $510,000. If the surviving spouse received only $250,000 under the will, the remaining $260,000 must be contributed by other beneficiaries to satisfy the elective share.
This elective share right ensures that a surviving spouse receives a minimum financial provision from the decedent’s estate, preventing complete disinheritance and providing a statutory safeguard in estate distribution under New York law.
🔴 Immediate Actions (Today or ASAP)
- Identify your status: Confirm that you are the surviving spouse of the decedent and that you want to claim your elective share in New York.
- Locate the will and estate documents: Obtain a copy of the decedent’s will, if any, and any Letters Testamentary or Letters of Administration issued by the Surrogate’s Court.
- Calculate the estate value: Gather information about the decedent’s assets, including probate assets, joint property, Totten Trust accounts, and gifts made in contemplation of death. Exclude life insurance proceeds owned by the decedent.
- Note the deadline: Mark the date when Letters Testamentary or Letters of Administration were issued. You have six months from that date to file your Notice of Election to claim the elective share.
- Contact the estate executor or administrator: Reach out to them to express your intent to consider exercising your elective share right and request any necessary estate information.
🟡 Short-Term Steps (This Week)
- Consult with an estate attorney: Schedule a meeting with a lawyer experienced in New York estate law to review your rights, confirm calculations, and help prepare the Notice of Election.
- Prepare the Notice of Election: Draft the formal Notice of Election to claim your elective share. This document must be served on the estate’s executor or administrator and filed with the Surrogate’s Court.
- Gather supporting documents: Collect proof of marriage, asset valuations, and any documents related to jointly held property, Totten Trusts, or gifts relevant to the estate.
- Serve and file the Notice of Election: Ensure the Notice of Election is properly served and filed within the 6-month deadline. If you need more time, discuss with your attorney about requesting an extension with the court.
- Communicate in writing: Use clear, polite emails or letters to communicate with the executor or administrator. Example:
"Dear [Executor's Name],
I am writing to notify you of my intent to exercise my elective share rights under New York law concerning the estate of [Decedent's Name]. Please provide the necessary documentation regarding the estate’s assets at your earliest convenience. Thank you."
🟢 Strategic Follow-Up (Next 2-4 Weeks or Longer)
- Monitor the estate administration: Stay informed about the probate process and ensure the elective share is properly accounted for in the estate distribution.
- Negotiate if necessary: If other beneficiaries resist paying the elective share, work with your attorney to negotiate or initiate legal action to enforce your rights.
- Review any waivers or challenges: If the estate or other parties claim you waived your rights or engaged in disqualifying conduct, be prepared to respond with evidence and legal support.
- Keep detailed records: Maintain copies of all correspondence, filings, court documents, and financial records related to the estate and your elective share claim.
- Plan for tax implications: Consult with a tax professional about any tax consequences related to receiving your elective share portion.
Your Legal Rights
- As a surviving spouse in New York, you have the right to claim the elective share, which is the greater of one-third of the decedent’s net estate or $50,000.
- This right protects you from being completely disinherited, even if the will leaves you less or nothing.
- You must exercise this right by serving a Notice of Election within six months after Letters Testamentary or Letters of Administration are issued.
- The elective share includes probate assets, joint property, Totten Trust accounts, and certain lifetime gifts, but excludes life insurance proceeds owned by the decedent.
- You can waive this right by agreement, but if you do not timely assert it, you may lose it.
- Your right may be denied if you engaged in disqualifying conduct such as abandonment, failure to support, or divorce before the decedent’s death.
Where to Get Help
- New York State Surrogate’s Court: Contact the Surrogate’s Court in the county where the decedent lived for information on filing procedures and forms. Website: https://www.nycourts.gov/courts/nyc/surrogates/
- Legal Aid Societies: If you cannot afford a lawyer, seek help from local legal aid organizations such as LawHelpNY to find free or low-cost legal assistance.
- New York State Bar Association: Use their lawyer referral service to find a qualified estate attorney. Website: https://nysba.org/
- Consumer Financial Protection Bureau (CFPB): For general information on estate and probate matters. Website: https://www.consumerfinance.gov/
- Gather documents: Marriage certificate, death certificate, will, Letters Testamentary or Administration, asset records, bank statements, property deeds, trust documents.
- Emergency help: If you suspect fraud or abuse in the estate process, contact the New York State Attorney General’s Office or local law enforcement immediately.
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