Rights of a Surviving Spouse


Pursuant to New York State law, you cannot completely disinherit a spouse. A surviving spouse at the time of a decedent’s death has a statutory right to inherit an “elective share” of the deceased spouse’s assets. A surviving spouse may elect against the deceased spouse’s estate in an amount up to $50,000 or one-third of the net estate, whichever is greater.  If the estate is less than $50,000 in total, the elective share is the value of the entire estate.

New York State Estates Powers and Trust Law § 5-1.1A sets forth the right of election for a surviving spouse. The EPTL overrides whatever the deceased spouse’s Will may say (e.g., completely disinheriting the surviving spouse).  When a married individual dies without a Will, the surviving spouse is entitled to $50,000 plus one half of the estate when there are children. When the decedent had no children, the spouse inherits 100% of the estate.

What Counts Toward 1/3 Share?

This right of election applies to probate assets and “testamentary substitutes.” Testamentary substitutes include joint bank accounts, jointly held real estate, gifts made in the year prior to death, and retirement accounts. Testamentary substitutes are included in the total amount of the net estate used to calculate the surviving spouse’s elective share.  Notably, life insurance is not considered a testamentary substitute.

The elective share amount is reduced by the value of any interest which passes outright to the surviving spouse. A spouse’s elective share is satisfied with property that passes “absolutely” from decedent to surviving spouse. Under the law, if the surviving spouse exercises their right of election, such election negates any interest that passes or would have passed to the spouse (other than outright or absolutely), as though the surviving spouse predeceased. The use of elective share trusts, such as a Qtip trust do not satisfy a surviving spouse’s elective share.

Do Not Wait to Assert the Right of Election!

The surviving spouse has a limited time to asset the right of election. The spouse must exercise the right of election within six months of the Surrogate’s Court issuing letters testamentary or letters of administration. If letters are not issued, the spouse has two years after death to make the election. There some are exceptions to these deadlines and judges can provide an extension. However, it is important to act quickly to avoid missing the deadline. Moreover, you want to avoid beneficiaries spending any assets that would contribute to the elective share.

If you feel that you received less from your spouse’s estate than anticipated, consult an experienced estate administration attorney. There are several factors that affect the right to an elective share, such as a prenuptial or separation agreement waiver.

Burner Law Group, P.C.

Scroll to Top
Schedule a Consultation