Spousal Right of Election

New York Law: Spousal Right of Election

There are many aspects to New York estate administration that require consideration, including the spousal right of election. The provisions in Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A entitled “Right of election by surviving spouse”, require that a surviving spouse is entitled to an “elective share” of a decedent’s estate. The elective share is equal to the greater of $50,000.00 or one-third of the decedent’s net estate.

Due to the right of election, a decedent generally cannot disinherit a spouse. If the surviving spouse was cut out of the decedent’s Last Will, a spousal right of election can be filed. The statute of limitations for filing a spousal right of election is six months after an executor or administrator of an estate has been appointed.

If the decedent does not have a Last Will and Testament but leaves assets to others as named beneficiaries, the provisions still apply. The electing spouse is required to follow the procedure in EPTL 5-1.1-A to file a claim. The statute instructs that the election be made either within 6 months after letters of administration or letters testamentary are issued but in no event later than 2 years after the decedent’s date of death.

Summary of Spousal Right of Election Law

According to New York state law, when a spouse dies with or without a will, the surviving spouse is entitled to” an elective share” of his or her spouse’s estate. The elective share in NY is the greater of 50,000 or 1/3 of the net estate. All assets that pass through a will would be included in the elective share, including joint accounts, property owned by the decedent, and many retirement accounts.

Parisi, Coan & Saccocio, PLLC provides representation to executors and beneficiaries of large estates exceeding $500,000. Our extensive knowledge and experience with New York Estates, Powers & Trusts Law (EPTL), Surrogate Court Procedures Act (SCPA), and other estate laws and case precedent provides our clients with the strong representation when it becomes necessary to take legal action to protect your right to an inheritance, or to defeat a claim against an estate.

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