In New York State, if a surviving spouse is “disinherited” (i.e., not provided for in a decedent’s will), they have the option to claim an elective share of the decedent’s estate. This legal right allows a spouse to receive a portion of the estate, even if the decedent’s will does not provide for them. Here’s a primer on how the elective share works in New York:
1. What is the Elective Share?
Under New York’s Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has the right to elect to take a statutory share of the decedent’s estate, instead of whatever the decedent left them in the will (or nothing at all). This share is designed to ensure that a surviving spouse is not completely left without provision, even if the decedent wanted to disinherit them.
2. How Much is the Elective Share?
The elective share is generally one-third of the decedent’s estate. This includes not just the property distributed under the will, but also certain property that may be outside of the will, such as:
- Joint property (property owned with another person, such as a joint bank account or joint real estate).
- Life insurance and retirement benefits.
- Gifts made during the decedent’s lifetime (that exceed certain thresholds), which may be subject to “clawback.”
In other words, the surviving spouse’s elective share is calculated based on the decedent’s total estate, including assets that may have been transferred during life or are otherwise outside the will.
3. What Is Included in the Estate?
The estate consists of:
- The decedent’s property that passes by will, trust, or intestate succession.
- Property that the decedent transferred during their lifetime (including gifts), subject to specific rules and exceptions.
- Property held jointly with others.
- Proceeds from life insurance policies, retirement plans, and other contractual rights.
It’s important to note that the estate includes both property that the decedent had control over at the time of death and certain transfers made during their lifetime that could be considered as an effort to avoid the spouse’s right to an elective share.
4. How to Elect the Elective Share?
The surviving spouse must file a notice of election to take the elective share within six months of the date they are served with the letters testamentary (the formal authority granted to the executor by the court). This time frame can be extended by the court in special circumstances, but it is critical to act within this period.
- If the spouse does not file the notice of election within this time frame, they are considered to have waived their right to the elective share.
- Once the notice is filed, the court will then determine the exact value of the elective share and calculate the spouse’s portion of the estate.
5. Disinherited Spouse’s Rights
If a spouse is disinherited (i.e., the will specifically excludes them), they are still entitled to elect the statutory share. This right exists even if the decedent explicitly excluded them, unless:
- The spouse waived their right to the elective share before the decedent’s death (via a prenuptial or postnuptial agreement).
- The decedent made valid provisions for the spouse in a manner other than the will (e.g., through a trust or other estate planning device).
6. Can the Elective Share Be Waived?
Yes. A spouse can waive their right to an elective share before marriage (via a prenuptial agreement) or after marriage (via a postnuptial agreement). In order for such a waiver to be valid, the spouse must voluntarily and knowingly waive their right, and the agreement must be in writing, signed by both parties, and in compliance with specific legal requirements.
7. Special Circumstances
- Children from Prior Marriages: If the surviving spouse has children from a prior marriage, the claim to the elective share will still stand, even if children are receiving the majority of the estate under the will.
- Statutory Restrictions: There are situations where the elective share may not apply or where the surviving spouse may be entitled to a reduced share (for example, if the surviving spouse is convicted of murdering the decedent).
- Non-Marital Partners: The elective share is a right only for legally married spouses. Unmarried partners or those in domestic partnerships do not have this claim.
8. Considerations When Electing the Share
Electing the share may be complicated and affect the distribution of the estate. In some cases, a surviving spouse may need to work with an attorney to determine:
- The full value of the estate.
- Which assets may be subject to the elective share.
- Whether it’s financially beneficial to elect the share (depending on what was left to the spouse in the will vs. what they would receive via the elective share).
The surviving spouse’s decision may affect the estate’s overall administration and tax obligations, so careful consideration is essential.
Conclusion
The elective share is a powerful legal right in New York that protects surviving spouses from being completely disinherited. If the decedent’s will leaves a spouse with little or nothing, the spouse can still claim a portion of the decedent’s estate through the elective share. However, navigating this process requires knowledge of the law, and it is often advisable to consult with an estate attorney to ensure the surviving spouse’s rights are protected and that the elective share is properly calculated and pursued.
For compassionate and expert assistance, please call Sverdlov Law at 212-709-8112 or email ksverdlov@sverdlovlaw.com or book a consultation here: https://calendly.com/katyasverdlov. We’re here to help you navigate this process and ensure your loved one receives the care and protection they deserve.