A New York resident signs a will leaving most of the estate to children from a prior marriage and only a limited benefit to a current spouse. The decedent also arranged some assets to pass outside probate through joint ownership, beneficiary designations, or trusts. The surviving spouse may assume that the will and account titles determine the result.
New York law can produce a different analysis. EPTL § 5-1.1-A gives a qualifying surviving spouse a personal right of election against the deceased spouse’s estate. The elective-share calculation can include more than property passing under the will because the statute treats specified lifetime arrangements as testamentary substitutes.
A right-of-election dispute is therefore not simply a will contest. The spouse may accept that the will is valid and still claim a statutory share that changes what beneficiaries ultimately receive. These issues can become significant Surrogate’s Court estate litigation, particularly in blended families and estates with substantial non-probate assets.
What Is the Spousal Right of Election?
EPTL § 5-1.1-A gives a surviving spouse of a decedent covered by the statute the right to elect against the estate. The elective share is generally the greater of one-third of the net estate or the statutory minimum described in the statute. In computing the net estate, the statute addresses deductions for debts, administration expenses, and reasonable funeral expenses and separately addresses estate taxes.
The purpose of the calculation is different from intestacy. The spouse is not asking the court to disregard a will because it was improperly executed or the product of undue influence. Instead, the spouse is invoking a statutory protection that limits a married person’s ability to disinherit a surviving spouse completely through the covered forms of disposition.
The amount the spouse actually receives through the election is not necessarily the gross elective-share figure. EPTL § 5-1.1-A reduces the spouse’s net elective share by the value of property that passes absolutely to the spouse through the will, intestacy, or testamentary substitutes.
The Election Can Reach Assets Outside the Probate Estate
One of the most important features of New York’s statute is its treatment of testamentary substitutes.
EPTL § 5-1.1-A(b) identifies categories of lifetime transfers and arrangements that may be included in the estate for elective-share purposes even though the assets do not pass through the probate estate. The statute includes, subject to its detailed conditions, certain gifts near death, Totten trust accounts, joint or survivorship accounts, jointly held property, transfers in which the decedent retained specified rights or powers, certain retirement and death benefits, and other designated interests.
This means that it wasn’t in the will does not answer a right-of-election question.
Suppose a decedent leaves a relatively small probate estate but transferred substantial assets into arrangements that fall within the testamentary-substitute provisions. The surviving spouse’s analysis may extend to those assets.
The opposite point is equally important: not every asset passing outside probate is automatically included at full value. EPTL § 5-1.1-A contains detailed rules concerning the type and timing of the transaction, the decedent’s contribution, retained rights, the date of the marriage, and particular classes of benefits. A careful calculation should follow the statute asset by asset.
Joint Accounts and Jointly Owned Property Require Source Analysis
Joint ownership is a common source of confusion in elective-share cases.
EPTL § 5-1.1-A(b)(1)(D) and (E) addresses certain joint bank accounts and jointly held property. Subdivision (b)(2) then provides rules for determining the proportion treated as a testamentary substitute based on the decedent’s contribution, with a special rule where the surviving spouse is the other party to the transaction.
Accordingly, the deed or account title alone may not resolve the elective-share value. Evidence concerning who supplied the funds or purchase consideration can matter.
This can make financial discovery important. Bank records, closing documents, wire transfers, account-opening records, and prior statements may be necessary to determine what portion of an asset belongs in the calculation.
The issue can also affect people other than the spouse. A child who received a survivorship account or jointly held property may find that the asset is implicated in the spouse’s election even though it passed directly at death.
The Election Has Strict Timing and Filing Requirements
A surviving spouse should not postpone the analysis until the estate is ready to close.
EPTL § 5-1.1-A(d)(1) generally requires the election to be made within six months from the issuance of letters testamentary or letters of administration and, subject to the statute’s extension provisions, no later than two years after the decedent’s death. The written notice must be served as the statute provides and the original filed and recorded in the Surrogate’s Court with proof of service.
The statute permits extensions in specified circumstances. Subdivision (d)(2) allows the Surrogate’s Court to extend the time before expiration in increments described by the statute and also provides a mechanism for relief from default within stated limits. It further gives the court discretion, for good cause shown, to extend beyond the two-year period in the circumstances described there.
A spouse who may have an election should identify the issue promptly so the deadline, assets, and potential testamentary substitutes can be investigated before rights become dependent on discretionary relief.
The executor should also identify the issue early because an unresolved election can affect distributions and the estate’s ability to close.
Who Bears the Economic Effect of an Election?
A successful election does not necessarily come only from the probate residuary beneficiary.
EPTL § 5-1.1-A(c)(2) generally provides for ratable contribution by beneficiaries and distributees receiving testamentary provisions, subject to contrary provisions in the governing instrument and the statute’s detailed rules. The concept matters because recipients of testamentary substitutes can be part of the economic adjustment required to satisfy the spouse’s share.
A beneficiary may agree that the surviving spouse has an elective right but disagree about valuation or the contribution attributable to a particular asset. A recipient of a non-probate account may argue that the transaction is not a testamentary substitute or that only a portion is included. The spouse may seek records needed to trace the decedent’s contributions.
The court having jurisdiction over the decedent’s estate determines questions arising from the right of election in a proceeding brought for that purpose or in a judicial accounting proceeding, as EPTL § 5-1.1-A(c)(4) provides.
A Spouse Can Waive the Right of Election
The right of election can be waived or released.
EPTL § 5-1.1-A(e) permits a spouse, during the other spouse’s lifetime, to waive or release the right against a particular will or testamentary substitute or against the other spouse’s estate more broadly. To be effective under the statute, the waiver or release must be in writing, subscribed, and acknowledged or proved in the manner required for recording a conveyance of real property.
This is why prenuptial and postnuptial agreements can become central to an estate dispute.
The existence of an agreement is only the beginning of the analysis. Counsel should examine the precise language, execution, scope, and whether the waiver reaches the particular right being asserted.
A surviving spouse should not assume that signing a prenup necessarily eliminated every estate right, and beneficiaries should not assume that a waiver is ineffective merely because the spouse now seeks an election.
Not Every Person Who Was Married to the Decedent Qualifies
EPTL § 5-1.2 identifies circumstances in which a husband or wife is disqualified from being treated as a surviving spouse for purposes that include the right of election.
The statute includes, among other grounds, a divorce or qualifying judgment in effect at death, certain void marriages, a qualifying separation judgment, abandonment continuing until death, and failure or refusal to support the other spouse under the circumstances described in the statute.
The threshold question should therefore be whether the claimant is a surviving spouse within New York law before the estate moves directly to calculating the elective share.
EPTL § 5-1.1-A also contains a domicile limitation: the statutory election is generally unavailable against the estate of a decedent who was not domiciled in New York at death unless the statutory choice-of-law provision applies.
Estate Planning for Married Clients Should Account for the Election
The right of election is particularly important in second marriages.
A client may want a residence to pass to children from a first marriage while allowing the current spouse to remain in the home. Another client may want each spouse to keep substantial separate property for their respective children. Those objectives are not impossible, but the plan should be designed with the elective-share rules in view rather than discovering them after death.
Thoughtful estate planning should coordinate wills, revocable trusts, jointly held property, beneficiary designations, and any marital agreement. Moving assets outside probate does not necessarily remove them from the elective-share calculation.
The plan should also consider what the spouse will actually receive. An outright benefit, a trust interest, a right of occupancy, and a beneficiary designation can have different treatment under the statute.
Where spouses intend to waive rights, the waiver should be handled deliberately and with the formalities required by law.
When to Speak With a New York Estate Litigation Attorney
A right-of-election issue should be reviewed promptly when a surviving spouse receives substantially less than expected, when the estate involves children from a prior relationship, when substantial property passes outside probate, or when a marital agreement may affect the spouse’s rights.
The initial review should include the will and trusts, the date letters issued, the date of death, deeds, beneficiary designations, joint-account records, retirement benefits, and any prenuptial or postnuptial agreement. That information allows counsel to identify both the deadline and the assets that may require further investigation.
For estates in Suffolk County Surrogate’s Court and families in Hampton Bays, the East End, and throughout Long Island, additional information about William G. Goode’s practice is available on his attorney profile, and the firm can be reached through its contact page.
References
- EPTL § 5-1.1-A – Right of election by surviving spouse.
- EPTL § 5-1.2 – Disqualification as surviving spouse.
Short FAQ
Can a surviving spouse challenge a will that leaves very little to the spouse?
Potentially, but the right of election is different from a will contest. A qualifying spouse may accept the validity of the will and still invoke EPTL § 5-1.1-A to claim the statutory elective share.
Does the right of election apply only to probate assets?
No. EPTL § 5-1.1-A treats specified non-probate arrangements as testamentary substitutes for elective-share purposes, subject to the statute’s detailed requirements.
How long does a surviving spouse have to make the election?
The statute generally measures the deadline from issuance of letters and also imposes an outside period tied to the date of death, subject to the extension provisions in EPTL § 5-1.1-A(d). Because the time limits matter, the issue should be reviewed promptly.
Can a prenuptial agreement waive the right of election?
Potentially. EPTL § 5-1.1-A(e) permits a waiver or release if the statutory execution requirements are satisfied and the agreement covers the right at issue.
Can beneficiaries of joint accounts be required to contribute toward the elective share?
Potentially. Certain joint and survivorship arrangements can be testamentary substitutes, and the statute contains contribution rules governing satisfaction of the spouse’s elective share.
Disclaimer
This article is for general informational purposes only and is not legal advice. Reading this article does not create an attorney-client relationship. Estate and Surrogate’s Court matters are fact-specific, and individuals should consult with an attorney regarding their particular circumstances. Prior results do not guarantee a similar outcome. This may be considered attorney advertising.
