New York law provides a surviving spouse with the right to claim a minimum share of the decedent’s estate, regardless of what the will says. This right, known as the “right of election” or “elective share,” is codified in EPTL 5-1.1-A and exists to prevent a spouse from being disinherited entirely.
The elective share is one of the most complex provisions in New York estate law, because it reaches beyond the probate estate to include certain lifetime transfers known as “testamentary substitutes.”
The Basic Rule
Under EPTL 5-1.1-A(a)(2), the elective share is the greater of:
- $50,000, or the capital value of the net estate if less than $50,000, or
- One-third of the net estate
The net estate is calculated by deducting debts, administration expenses, and reasonable funeral expenses. Estate taxes are disregarded in the computation (though the surviving spouse must still contribute to taxes apportioned against him or her under EPTL 2-1.8).
For Westchester County families with substantial estates, the one-third calculation will almost always exceed $50,000. On a $6,000,000 net estate, the elective share would be $2,000,000.
What Counts as the “Estate”
Here is where the elective share gets complicated. The “estate” for elective share purposes is not limited to assets that pass through the will. Under EPTL 5-1.1-A(b)(1), the estate includes the capital value of certain “testamentary substitutes,” lifetime transfers and arrangements that function as will substitutes. These include:
Gifts made within one year of death. Gifts causa mortis (in contemplation of death) and any gifts exceeding $15,000 per donee made within one year of death are included.
Joint bank accounts and Totten trusts. Money deposited in joint accounts or in-trust-for (Totten trust) accounts is included to the extent of the decedent’s contribution.
Joint tenancy property. Property held as joint tenants with right of survivorship (other than with the surviving spouse) is included to the extent of the decedent’s contribution.
Pay-on-death and transfer-on-death designations. Assets passing by beneficiary designation to persons other than the surviving spouse are included.
Lifetime trusts with retained interests. Property transferred to a trust where the decedent retained an income interest, a right to invade principal, or a power of revocation is included.
Powers of appointment. Property subject to a presently exercisable general power of appointment held by the decedent is included.
Retirement accounts and pension benefits. Certain retirement benefits passing to persons other than the surviving spouse may be included.
The inclusion of testamentary substitutes is what makes the New York elective share significantly broader than the elective share in many other states. A decedent cannot defeat the surviving spouse’s rights simply by transferring assets out of the probate estate during lifetime.
The Net Elective Share
The surviving spouse is not entitled to the full elective share if he or she already receives assets from the estate. Under EPTL 5-1.1-A(a)(4), the “net elective share” is the elective share (one-third of the net estate) reduced by the capital value of any interest that passes absolutely to the surviving spouse by intestacy, testamentary substitute, or disposition under the will.
In practical terms: if the will leaves the surviving spouse $1,500,000 and the elective share is $2,000,000, the spouse can elect and receive an additional $500,000. The spouse does not receive the full $2,000,000 on top of what the will already provides.
How to Exercise the Right of Election
The surviving spouse must affirmatively exercise the right of election. It is not automatic. Under EPTL 5-1.1-A(d), the election must be:
Filed within six months of the issuance of Letters Testamentary or Letters of Administration, or within six months of receiving notice of the decedent’s death (whichever is later). The court may extend this period in certain circumstances.
Filed with the Surrogate’s Court in the county where the estate is being administered.
In writing. The election must be a written notice filed with the court and served on the executor or administrator.
If the surviving spouse fails to file the election within the required timeframe, the right is lost.
Waiver of the Elective Share
A surviving spouse can waive the right of election in a prenuptial agreement, postnuptial agreement, or separation agreement. Under EPTL 5-1.1-A(e), the waiver must be in writing, signed by the waiving spouse, and acknowledged in the manner required for a deed.
Prenuptial agreements that waive the elective share are common in second marriages, where each spouse wants to preserve assets for children from prior relationships. The waiver must be voluntary and made with adequate disclosure of the other spouse’s financial circumstances.
The Elective Share and Estate Tax Planning
The elective share creates a planning tension for married couples. On one hand, credit shelter trust planning (which shelters the first spouse’s New York estate tax exclusion) requires directing assets to a trust rather than outright to the surviving spouse. On the other hand, the surviving spouse has the right to elect against the will and claim one-third of the net estate outright.
The standard solution is coordination: the credit shelter trust is structured to provide the surviving spouse with sufficient income and access to principal that the spouse has no reason to exercise the right of election. Many estate planning attorneys also include a provision in the will or trust that reduces the surviving spouse’s other bequests if the elective share is exercised, creating a disincentive to elect.
In a well-planned estate, the elective share right is a backstop that is never actually used. But it must be accounted for in the drafting.
The Elective Share and Second Marriages
The elective share is most commonly an issue in second marriages and blended families. When a decedent leaves the bulk of the estate to children from a prior marriage and leaves the surviving spouse less than one-third of the net estate, the surviving spouse may choose to exercise the right of election.
This scenario is common enough in Westchester County that estate planning attorneys routinely address it. The options include prenuptial waivers, life insurance to fund the surviving spouse’s share, QTIP trusts that provide for the surviving spouse while preserving assets for the decedent’s children, and outright negotiations during the estate planning process.
Elective Share for Incapacitated Spouses
If the surviving spouse is incapacitated and cannot exercise the right of election personally, a guardian or the agent under a power of attorney may exercise the right on the spouse’s behalf, with court approval. Under EPTL 5-1.1-A(d)(5), the guardian must petition the court for authority to make the election.
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