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Spousal Right of Election in New York
By Jules M. Haas, New York Probate and Estate Attorney
| New York’s Spousal Right of Election At a Glance A surviving spouse in New York may take a share of the estate whatever the will provides. Under Estates, Powers and Trusts Law § 5-1.1-A, that share is the greater of $50,000 or one-third of the net estate, and the election must be made within six months after letters issue and never later than two years after the death.
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The right of election is the one deadline in New York estate practice Jules M. Haas will not let a client treat casually. Six months runs from the day letters issue, and the outside limit is two years from the death. I have watched surviving spouses come in well inside the window and still nearly lose it, because the family assumed the estate had to be settled first, or because nobody had applied for letters at all.
An election is also not a will contest, and the two are confused constantly. A spouse who elects is not saying the will is invalid, and the claim runs alongside probate rather than against it. That is one reason it belongs with the rest of the New York trusts and estates work I handle, and not only with the litigation.
What the Spousal Right of Election Gives a Surviving Spouse
New York does not allow a married person to disinherit a spouse by will. EPTL 5-1.1-A gives a surviving spouse a personal right to take an elective share of the estate in place of what the will provides. The section applies to the estates of decedents dying on or after September 1, 1992, and EPTL 5-1.1 governs deaths before that date.
The elective share is a pecuniary amount rather than an interest in particular property. It is the greater of $50,000, or the capital value of the net estate if that value is less than $50,000, or one-third of the net estate. In computing the net estate, debts, administration expenses, and reasonable funeral expenses are deducted, and all estate taxes are disregarded. What the spouse actually receives is the net elective share, which is that figure reduced by the capital value of any interest passing absolutely from the decedent to the spouse, whether under the will, through intestacy, or by a testamentary substitute. A spouse already taking half the estate outright is owed nothing more.
Because the right does not depend on proving anything wrong with the will, it belongs to a spouse with no interest in litigating capacity or undue influence in a New York will contest, and it survives a contest that failed.
How the Elective Share Is Satisfied
An election does not void the will. The instrument stays valid as to the residue once the spouse’s share has been deducted, and ratable contribution to that share is made by the other beneficiaries and distributees, in cash, in specific property, or in a combination. The spouse’s real dispute, when there is one, is with those beneficiaries rather than with the will.
What Counts as a Testamentary Substitute in New York?
The elective share is computed against more than the probate estate. EPTL 5-1.1-A draws a defined list of lifetime transfers back into the calculation as testamentary substitutes. Gifts causa mortis, transfers within one year of death without adequate consideration, Totten trusts and other New York trust arrangements, payable-on-death accounts, joint tenancies and tenancies by the entirety, and property subject to a presently exercisable general power of appointment all count.
Two limits on that list decide real cases. Retirement, pension, deferred compensation, and profit-sharing benefits are testamentary substitutes, but for certain defined contribution plans only to the extent of 50% of their capital value, and such a plan is not a testamentary substitute at all where the decedent designated the beneficiary on or before September 1, 1992 and never changed that designation afterward. Separately, a transaction that is irrevocable, or revocable only with the consent of a person holding a substantial adverse interest, becomes a testamentary substitute only where it was effected after the date of the marriage. An account opened before the wedding is treated differently from the same account opened after it.
The list is closed. EPTL 5-1.1-A(b)(1) enumerates the transactions treated as testamentary substitutes and ends without a catch-all clause, and the words life insurance appear nowhere in the section. Life insurance payable to a named beneficiary other than the estate therefore sits outside the computation, which is one recurring reason an elective share comes out smaller than a surviving spouse expected.
How Do You File an Election, and by When?
The election is made by serving written notice on the personal representative, and then filing and recording the original, with proof of service, in the Surrogate’s Court that issued letters. Both steps belong inside six months from the date of issuance of letters testamentary or letters of administration, and in no event later than two years after the death. The limits run independently and the earlier one ends the right, so a long delay in applying for letters can leave a spouse far less than six months of usable time. The court may extend the period before it expires, by order, for a further term not exceeding six months on any one application.
A missed deadline is not always fatal. Where no decree settling the fiduciary’s account has been entered, fewer than 12 months have passed since letters issued, and fewer than two years since the death, the Surrogate may relieve the spouse of the default and fix a new period for making the election. The statute also permits relief past the two-year mark for good cause shown.
Disputes are resolved in the Surrogate’s Court. SCPA 1421 lets any person interested in the validity or effect of an election petition the court that probated the will or issued letters, and the same question may be decided in a proceeding to settle the fiduciary’s account. Where property belonging in the net estate never reached the fiduciary, the court fixes the liability of whoever holds it.
When the Right Is Waived or Lost
A spouse may waive or release the right of election, against a particular will or against any will and any testamentary substitute. The waiver must be in writing, subscribed by the maker, and acknowledged or proved the way a deed is for recording, and it works whether signed before or after the marriage and with or without consideration. Drafting those agreements is part of the New York wills and estate planning side of the practice, and the acknowledgment is the first thing worth checking on one.
EPTL 5-1.2 disqualifies a surviving spouse outright in six situations: a valid divorce, annulment, or dissolution in effect at the death, a marriage void as incestuous, bigamous, or a prohibited remarriage, a foreign divorce the spouse obtained that New York does not recognize, a valid decree of separation rendered against the spouse, abandonment that continued until the death, and a failure to support where there was both a duty and the means.
Because I file the probate petition and the election out of the same office, a spouse who reaches me before letters have issued gets the two moves made in the right order. A free initial consultation is enough to work out which comes first, and the New York estate administration that follows is handled the same way.
What Records Prove an Elective Share Claim?
An elective share case turns on financial records rather than on testimony about the marriage. The probate inventory is only a starting point. The real work is reconstructing the testamentary substitutes, because those are the assets the decedent moved during life, and they are the ones a fiduciary has the least reason to surface on its own.
The recurring sources are bank and brokerage statements showing joint titling and the date each account was opened, Totten trust and payable-on-death designations, deeds establishing when a tenancy by the entirety was created, beneficiary designation forms for retirement plans with the date each was signed, and gift records for the year preceding the death. Dates carry as much weight as balances, because the pre-marriage rule and the September 1, 1992 designation rule both turn on when something was done.
Where a waiver is asserted, the agreement and its acknowledgment are examined along with what each spouse disclosed. Where disqualification is raised under EPTL 5-1.2, the proof is documentary as well, meaning judgments of divorce or separation and the residence and support records bearing on abandonment or nonsupport.
Working an Election From Either Side
I calendar the two dates before anything else. The six-month date from the issuance of letters and the two-year date from the death go on the file the day it opens, and if no letters have issued I want to know why, because a spouse cannot start that clock alone. Petitioning for letters is often the first step in protecting the election rather than a separate matter for later.
The rest is asset tracing. Jules M. Haas, Attorney at Law is a solo practice, so the person reconstructing the testamentary substitutes is the person who argues the computation. The practice handles these proceedings in the Surrogate’s Courts of New York City and the surrounding counties.
The work runs the other way just as often. An executor or administrator served with a notice of election has to test the claim before paying anything, because a fiduciary who distributes on an election that was untimely, waived, or overstated answers for it on the accounting. I represent estates in that review, checking whether the notice was served and filed inside the statutory window, whether a waiver was acknowledged the way the statute requires, whether the spouse is disqualified under EPTL 5-1.2, and whether the testamentary substitutes the claim leans on genuinely belong in the net estate. The same statute settles it from either chair.
What to Do in the First Six Months After a Spouse Dies
Find out whether letters have issued, and on what date. That date starts the six-month clock, not the date of death and not the day you first read the will. If nothing has been filed, that is information rather than a delay to rely on.
Do not wait for the estate to be settled. An election is made during administration, and a spouse who waits for a final accounting files after the right has expired.
Pull the account records early. Statements and signature cards for joint and Totten trust accounts, payable-on-death designations, and retirement plan beneficiary forms are easier to obtain in the months after a death than a year later, and the opening date on each is the part that matters.
Find any agreement you signed. A prenuptial or postnuptial agreement, a separation agreement, or a form signed at a bank can carry a waiver, and whether it was acknowledged decides whether it counts.
Do not sign a receipt and release, or accept a distribution described as your full share, until the net elective share has been computed against the testamentary substitutes.
Common Questions About Electing Against a New York Will
Can a Spouse Elect Against a Will That Leaves Them Nothing?
Yes. A will disinheriting a spouse is still a valid will in New York, but EPTL 5-1.1-A gives the surviving spouse the right to take an elective share instead. The share is the greater of $50,000 or one-third of the net estate, and the other beneficiaries contribute to it ratably out of what the will gave them.
Do You Have to Contest the Will to Take an Elective Share?
No, and this is the most common misunderstanding about the right. An election concedes the will is valid and asks only for the share the statute provides. It requires no proof of undue influence, fraud, or lack of capacity, and it remains available to a spouse whose will contest has already failed.
Does the Right of Election Reach Joint Bank Accounts?
Usually. A joint tenancy or tenancy by the entirety created after August 31, 1966 is a testamentary substitute under EPTL 5-1.1-A, so the account is drawn back into the net estate even though it passed outside probate. Timing matters, because a transaction that is irrevocable, or revocable only with an adverse party’s consent, counts only if it was effected after the marriage.
What Happens if the Six-Month Deadline Passes?
The right is not automatically gone. Where no decree settling the fiduciary’s account has been entered, fewer than 12 months have run since letters issued, and fewer than two years since the death, the Surrogate may relieve the spouse of the default and set a new period. Relief beyond two years is available for good cause shown, but it is never routine.
Can a Prenuptial Agreement Give Up the Right of Election?
Yes, if it was executed properly. A waiver or release must be in writing, subscribed by the person making it, and acknowledged or proved in the manner New York requires for recording a deed. It works whether signed before or after the marriage and whether or not anything was given in exchange, so the questions worth asking are about execution rather than fairness.
Related Practice Areas
- The six-month clock starts when letters issue, which makes the sequence of petition, citation, and appointment worth understanding in the New York probate process.
- An election is satisfied by ratable contribution from everyone else who takes, which puts the other legatees in the middle of it and engages New York estate beneficiary rights.
- Elective share disputes are often litigated alongside accountings and removal applications covered in the practice’s New York estate litigation questions.
If your spouse has died and the will leaves you less than a third of the estate, the first thing to establish is how many days are left on the clock. A free initial consultation is enough for me to tell you when letters issued, what the testamentary substitutes are likely to add, and whether an agreement you signed years ago waived anything. Call Jules M. Haas, Attorney at Law at (212) 355-2575 or reach me through the contact page for the practice’s Midtown Manhattan office about a right of election in the New York City Surrogate’s Courts and the surrounding counties.