Right of Election for the Surviving Spouse in New York Probate

The spousal right of election must be made within 6 months from the date of the issuance of letters testamentary.

New York Estates Powers and Trust Law (EPTL) Section 5-1.1-A provides a right of election for the surviving spouse to take a share of his or her spouse’s estate, no matter what the will provides. The right of election provides that the elective share of the surviving spouse is the greater of one-third of the net estate, as augmented by so called “testamentary substitutes,” or Fifty Thousand Dollars ($50,000).

Testamentary substitutes include gifts causa mortis, gifts made in the year prior to the decedent’s death, Totten trust accounts, joint bank accounts, property held jointly or payable to another upon death, assets transferred by the decedent in which she retained the right to income for life, retirement accounts, assets in which the decedent held a general power of appointment and transfer-on-death (TOD) or payable-on-death (POD) accounts or securities. These testamentary substitutes are added back into the net estate for purposes of calculating right of election of the surviving spouse.