New York Elective Share: A Surviving Spouse's Right of Election Under EPTL 5-1.1-A

Can my spouse disinherit me in New York?

Not completely. A will can leave a spouse less than the spouse would like, and it can leave the spouse nothing at all on its face. But EPTL 5-1.1-A gives the surviving spouse a personal right to elect against the estate and take the greater of $50,000 or one-third of the net estate. If the net estate is under $50,000, the spouse can take all of it.

Three points follow from the statute that people often miss:

• The right exists whether or not there is a will. If your spouse died intestate but had moved assets into testamentary substitutes (joint accounts, a revocable trust, retirement accounts naming someone else), the election can reach those assets even though the intestate share under EPTL 4-1.1 would be small.
• The right is personal to the surviving spouse. If the spouse is incapacitated, a court-appointed guardian can make the election with court authorization. If the surviving spouse dies before electing, the spouse's own estate generally cannot make the election.
• The current statute applies to decedents dying on or after September 1, 1992. Deaths before that date are governed by the former EPTL 5-1.1, which had different rules on trusts and testamentary substitutes.

How is the elective share calculated?

The elective share is a dollar amount, not a right to specific property. It equals the greater of:

• $50,000, or the whole net estate if the net estate is less than $50,000; or
• one-third of the net estate.

The net estate for this purpose is broader than the probate estate. Under EPTL 5-1.1-A(a)(2) and (b), it consists of the property passing under the will or by intestacy plus all testamentary substitutes, less debts, administration expenses, and reasonable funeral expenses. Estate taxes are disregarded in the computation. The resulting amount is then reduced by the value of anything that passes to the spouse absolutely, as explained below.

What counts: testamentary substitutes under EPTL 5-1.1-A(b)

The legislature added testamentary substitutes to the net estate so that a spouse could not be cut out by moving assets outside the will. The main categories are:

• Gifts causa mortis: gifts made in contemplation of death.
• Gifts within one year of death: transfers made within the year before death, to the extent they exceed the federal gift-tax annual exclusion amount for that year (Internal Revenue Code 2503(b)) and were not made for full consideration.
• Totten trusts and payable-on-death accounts: bank accounts held in trust for another person, and other accounts payable on death.
• Joint accounts and joint property with right of survivorship: included to the extent the decedent furnished the funds or consideration. Where the surviving spouse is the other joint owner (including a tenancy by the entirety in real property), the decedent is treated as having contributed one-half. Where a third party is the other joint owner, the surviving spouse has the burden of proving how much the decedent contributed, and the statute attaches dates to certain joint real property interests created before September 1, 1992.
• Revocable trusts and retained-interest transfers: property the decedent placed in trust or otherwise transferred while keeping the income, the use, or the power to revoke, invade, or consume principal, alone or with someone who had no substantial adverse interest.
• Retirement and deferred compensation plans: pensions, profit-sharing plans, IRAs, 401(k)s, and similar arrangements, subject to narrow exceptions in the statute for certain older beneficiary designations and to federal ERISA rules that can override state law for some employer plans.
• Property subject to a general power of appointment: property over which the decedent held a presently exercisable general power at death.
• Securities registered in beneficiary (TOD) form.

Life insurance is not a testamentary substitute. EPTL 5-1.1-A(b) excludes life insurance proceeds from the computation regardless of who the beneficiary is. A policy that names a child from a prior marriage, or anyone else, is outside the reach of the election. United States savings bonds and similar federal obligations are also excluded. An irrevocable trust in which the decedent retained no income interest and no power to revoke is generally not a testamentary substitute either, unless the transfer falls within the one-year gift rule.

What you already receive reduces the elective share

This is the part of the statute that decides whether an election is worth making. Under EPTL 5-1.1-A(a)(4), the elective share is reduced by the capital value of every interest that passes absolutely from the decedent to the surviving spouse, by will, by intestacy, or by testamentary substitute. It is also reduced by any absolute interest the spouse renounces; you cannot disclaim a bequest to enlarge the deficiency.

"Absolutely" is the key word. An outright bequest, the spouse's survivorship half of a joint account, or an IRA naming the spouse all count against the share. An income interest in a trust, a life estate in the house, or any other interest that is not outright does not count. Before 1992, a will could satisfy the elective share with a trust paying income to the spouse for life. That is no longer true. If the will leaves the spouse only a trust interest and the spouse elects, the statute in effect treats the non-absolute interest as renounced, the spouse takes the elective share in cash or property, and the trust property passes as though the spouse had died first.

If the absolute interests passing to you already equal or exceed one-third of the net estate (or $50,000), an election produces nothing. If they fall short, you are entitled to the difference.

A worked example of the augmented net estate

Assume a husband dies in Queens survived by his wife and two adult children from an earlier marriage. His will leaves his wife $100,000 outright and the rest of his probate estate to the children. His assets at death, after paying debts, administration expenses, and the funeral, are:

• Probate estate: $600,000 (brokerage account and cash in his sole name).
• Revocable living trust: $300,000, payable to the children.
• Joint savings account with his daughter: $100,000, funded entirely by him.
• IRA naming his son: $200,000.
• Life insurance naming his son: $500,000.
• House held with his wife as tenants by the entirety: $800,000.

Step one, build the net estate. The probate estate ($600,000), the revocable trust ($300,000), the joint account ($100,000), and the IRA ($200,000) all count. The life insurance is excluded. The house counts at one-half ($400,000) because the decedent is deemed to have contributed half of property held with his spouse. Net estate: $1,600,000.

Step two, compute the share. One-third of $1,600,000 is $533,333, which is greater than $50,000.

Step three, subtract what passes to the wife absolutely. She receives the $100,000 bequest under the will and the decedent's $400,000 half of the house by survivorship. Offsets total $500,000.

Step four, the deficiency. $533,333 less $500,000 leaves $33,333. That is the amount her election can recover, and it is paid by ratable contribution from the children in proportion to what each received from the net estate.

Change one fact and the result changes a great deal. If the house had been in the husband's name alone and left to the children, the full $800,000 would be in the net estate ($2,000,000 total), the share would be $666,667, the only offset would be the $100,000 bequest, and the deficiency would be $566,667. Running these numbers with accurate values for every asset is the first thing we do when a surviving spouse consults us.

Who pays the elective share? Ratable contribution

Under EPTL 5-1.1-A(a)(4), the shortfall is made up by all beneficiaries of the net estate, including recipients of testamentary substitutes, each contributing in proportion to the value of what they received. A child who took $300,000 from the revocable trust contributes three times as much as a niece who took $100,000 from a joint account. The will cannot shift the burden onto one beneficiary unless the statute permits it, and a beneficiary who received a testamentary substitute outside the probate estate is still liable for his or her ratable portion.

Contribution can be paid in cash or in kind. In practice, collecting from a recipient of a joint account or a trust distribution who refuses to cooperate may require the executor or administrator to bring a discovery and turnover proceeding or to raise the issue in the accounting. If the fiduciary will not act, the spouse can ask the Surrogate to compel it.

What is the deadline to file a notice of election?

EPTL 5-1.1-A(d) sets two limits. The election must be made within six months after letters testamentary or letters of administration are issued, and in no event later than two years after the date of death. Both limits apply. If letters issue twenty months after death, you have four months, not six.

The Surrogate can extend the six-month period on an application made before it expires, for reasonable cause, in increments of up to six months. The court also has limited power to relieve a spouse from a default, but that relief is discretionary, requires a showing of reasonable cause, and is generally unavailable once the estate has been judicially settled. Do not plan around an extension.

If no fiduciary has been appointed, the two-year outside limit still runs from the date of death. A spouse facing that situation should consider petitioning for letters of administration or for probate so that the estate is opened and the election can be served on a fiduciary. See our pages on letters testamentary and estate administration without a will.

How the notice of election is filed and served

The election is made by a written notice signed by the surviving spouse stating that the spouse elects to take his or her elective share under EPTL 5-1.1-A against the estate of the named decedent. The notice is:

1. served on each executor or administrator, personally or in another manner the Surrogate directs; and
2. filed and recorded, with proof of service, in the Surrogate's Court of the county that issued letters (for example, Kings County Surrogate's Court for a Brooklyn decedent, or New York County Surrogate's Court for Manhattan).

The notice does not need to state the amount claimed or list the testamentary substitutes. The computation comes later. What matters at the filing stage is that the notice is unambiguous, timely, properly served, and on file with proof of service. We recommend serving the fiduciary personally through a process server and filing the affidavit of service with the notice so there is no dispute about timing.

Filing the notice does not by itself invalidate the will or change who serves as executor. Probate continues. The spouse becomes a creditor-like claimant of the estate for the elective amount and is entitled to be cited in the accounting proceeding. Our sample New York probate timeline shows where the election fits in a typical administration.

What happens if the election is contested: SCPA 1421

SCPA 1421 provides the proceeding to determine the validity and effect of an election by a surviving spouse. The spouse, the fiduciary, or any person interested in the estate may petition. The court can decide whether the election was timely and properly made, whether the spouse is disqualified under EPTL 5-1.2, whether a waiver is enforceable, which assets are testamentary substitutes, the value of the net estate, the offsets, and how the share is to be funded.

In a contested matter the typical sequence is: the spouse files the notice of election; the executor or a beneficiary petitions under SCPA 1421 (or the spouse petitions to compel recognition of the election); the court issues a citation to all interested parties; the parties exchange discovery on the decedent's assets, account contributions, and the facts behind any disqualification defense; and the Surrogate decides the issues after a hearing or on motion. Valuation disputes over real property or a business interest often require appraisals. Many of these proceedings settle once the net estate has been quantified, because the statute leaves little room for argument about the arithmetic.

If the estate is already in an accounting, the same issues can be raised as objections to the account. See our page on estate accountings.

Prenuptial and postnuptial agreements: waiver of the right of election

EPTL 5-1.1-A(e) allows a spouse to waive or release the right of election, before or after the marriage, in whole or in part, with or without consideration. The waiver must be in writing, signed by the person waiving, and acknowledged or proved in the manner required to record a deed. A prenuptial agreement that does not meet the acknowledgment requirement is vulnerable on that ground alone. The formalities for matrimonial agreements under Domestic Relations Law 236(B)(3) overlap with this rule.

A properly executed waiver is enforceable, but not beyond challenge. In Matter of Greiff, 92 N.Y.2d 341 (1998), the Court of Appeals held that where the spouse attacking a prenuptial agreement shows that the relationship between the parties at the time of signing was one of inequality, so that the decedent was in a position of dominance, the burden shifts to the proponent of the agreement to prove that it was free of fraud, duress, and overreaching. Facts that matter include whether the surviving spouse had independent counsel, whether the decedent's assets were disclosed, how much time passed between presentation and signing, language barriers, and the timing relative to the wedding.

A separation agreement can contain a waiver of the right of election. A separation agreement that does not contain one, standing alone, does not disqualify the spouse.

Defenses that can defeat a spouse's election: EPTL 5-1.2

EPTL 5-1.2 lists the circumstances in which a surviving spouse is treated as no spouse at all for purposes of the elective share, the intestate share, and the family exemption:

• Divorce or annulment: a final judgment of divorce, annulment, or dissolution valid under New York law was in effect at death.
• Void marriage: the marriage was incestuous, bigamous, or a prohibited remarriage under the Domestic Relations Law.
• Out-of-state decree procured by the survivor: the surviving spouse obtained a divorce or annulment outside New York that is not recognized as valid here.
• Judgment of separation against the survivor: a valid final judgment of separation was rendered against the surviving spouse and was in effect at death.
• Abandonment: the surviving spouse abandoned the decedent and the abandonment continued until death.
• Failure to support: the surviving spouse failed or refused to provide for the decedent despite having the means, unless the duty was resumed and continued until death.

The party asserting disqualification has the burden of proving it. Abandonment is the defense most often raised and most often lost. Under Matter of Maiden, 284 N.Y. 429 (1940), and Matter of Riefberg, 58 N.Y.2d 134 (1983), abandonment in the estate context carries the same meaning as in matrimonial law: an unjustified departure from the marital home, without the consent of the other spouse, with no intention to return, continuing until death. Living apart by agreement, leaving because of the decedent's cruelty, or being excluded from the home by the decedent is not abandonment. Riefberg also confirms that the burden rests on the objectant, and that a spouse who left for cause has not abandoned the other.

Failure-to-support defenses turn on whether the surviving spouse had the ability to support the decedent and a legal duty to do so, and on whether support was in fact provided in some form. These are fact-intensive questions resolved in the SCPA 1421 proceeding.

Trusts, joint accounts, and transfers made before the marriage

Three recurring situations deserve separate treatment:

• A revocable trust created before the marriage. The date of the trust does not matter. If the decedent could revoke it at death, the trust property is a testamentary substitute and is in the net estate.
• An irrevocable trust with no retained interest. If the decedent gave up the income, the use, and any power to revoke or invade principal, the trust property is generally outside the net estate, unless funded within a year of death. Whether a power held jointly with a trustee or beneficiary who has a substantial adverse interest defeats inclusion is a question the statute answers in the decedent's favor only when the adverse interest is genuine.
• A joint account with a child. The account is included to the extent the decedent funded it. The surviving spouse bears the burden of tracing the contributions, which usually means subpoenaing bank records. Where the account was opened solely for convenience and the child contributed nothing, the full balance is in the net estate.

Transfers made before September 1, 1992 are governed by the former statute for some categories, and a spouse whose decedent arranged assets decades ago should expect that issue to be raised.

Other rights of a surviving spouse in New York

Intestate share under EPTL 4-1.1

If there is no valid will, EPTL 4-1.1 gives the surviving spouse the entire estate when the decedent left no descendants, and the first $50,000 plus one-half of the balance when the decedent left children or other descendants. The intestate share is calculated on the probate estate only. The right of election remains available in intestacy to reach testamentary substitutes, and the intestate share the spouse receives is an offset against the elective share.

Family exemption under EPTL 5-3.1

EPTL 5-3.1 sets aside specific property for the surviving spouse (or, if none, minor children) that is not an asset of the estate and is not reachable by estate creditors. For decedents dying after the 2010 amendments the categories and caps are:

• household furniture, appliances, housekeeping items, musical instruments, electronics, clothing, fuel, and provisions, up to $20,000;
• family pictures, books, software, and recordings, up to $2,500;
• domestic animals with sixty days of feed, farm machinery, one tractor, and one lawn tractor, up to $20,000;
• one motor vehicle, up to $25,000 in value; and
• money or other personal property, up to $25,000, subject to the fiduciary's obligation to apply it to reasonable funeral expenses if the estate is otherwise insufficient.

These items pass to the spouse in addition to the elective or intestate share and are not counted in the net estate or as an offset. A spouse disqualified under EPTL 5-1.2 loses the exemption as well.

Liability for the decedent's debts

Electing against the estate does not make you responsible for your spouse's individual debts. That question is covered on our page about whether a surviving spouse is responsible for the other spouse's debts in New York.

Election versus will contest

The right of election does not depend on the will being invalid. You can file a notice of election and accept the will as written. You can also contest the will on grounds such as lack of capacity or undue influence and, if you succeed, take under a prior will or by intestacy. The two remedies are separate and can be pursued together, and the deadlines are different: the election runs from letters and death, while objections to probate must be filed before the will is admitted or within the time the court sets. We explain the grounds and procedure on our will contest page. In many cases the election is the stronger remedy because it requires no proof of wrongdoing, only arithmetic.

Three illustrative situations

The following are hypothetical scenarios drawn from the kinds of facts that arise in these matters. They are not descriptions of any client's case or result.

• Second marriage, assets in trust for the children. A wife of twelve years learns that her late husband's will leaves her the right to live in the apartment for life and nothing else, with the apartment and a $900,000 revocable trust going to his children at her death. The life estate is not an absolute interest. She can elect, the net estate includes the trust, and she is entitled to one-third of the combined value in cash or property, funded ratably by the children.
• Everything in joint accounts with a sibling. A husband dies without a will. The only asset in his name is a $15,000 checking account; $700,000 sits in joint accounts with his brother, all of it deposited by the decedent. The intestate share is nearly worthless, but an election brings the joint accounts into the net estate, and the brother must contribute toward the share. The widow must prove the decedent funded the accounts, which bank records typically establish.
• Prenuptial agreement signed the week of the wedding. The executor opposes a widow's election with a prenuptial waiver. The agreement was drafted by the decedent's lawyer, presented three days before the ceremony, signed without counsel for the widow, and contains no financial disclosure. Under Greiff these facts can shift the burden to the executor to prove the agreement was fair and free of overreaching. The acknowledgment should also be checked against the deed-recording standard.

How we can help

We represent surviving spouses who need to assert the right of election, and we represent executors and beneficiaries who need to respond to one. For a surviving spouse, our work includes:

• Calculating the claim: identifying every testamentary substitute, obtaining account and trust records, valuing real property and business interests, and computing the deficiency after offsets before you decide whether to elect.
• Filing and serving the notice of election: preparing the notice, serving the fiduciary, and recording proof of service with the Surrogate's Court within the six-month and two-year limits, or seeking an extension before the deadline passes.
• Litigating under SCPA 1421: petitioning to determine the validity and effect of the election, or defending against a petition that asserts abandonment, failure to support, or a prenuptial waiver.
• Collecting the share: enforcing ratable contribution from beneficiaries and recipients of testamentary substitutes, including through turnover proceedings and objections to the fiduciary's accounting.
• Coordinating related claims: the family exemption, the intestate share, and, where the facts support it, objections to probate.

If your spouse died recently and you have been left out of the will or the assets appear to have been moved outside it, the first step is a review of the estate's assets and the dates on which letters issued. Call 212-233-1233 or email email@nyestateslawyer.com to schedule a consultation. We handle these matters in the Surrogate's Courts of New York City, Long Island, Westchester, and throughout the state. Our Brooklyn estate practice page describes our work in Kings County.

Statutes and cases cited on this page

• EPTL 5-1.1-A, right of election by surviving spouse (decedents dying on or after September 1, 1992).
• EPTL 5-1.2, disqualification as surviving spouse.
• EPTL 5-3.1, exemption for benefit of family.
• EPTL 4-1.1, descent and distribution of a decedent's estate.
• SCPA 1421, proceeding to determine validity and effect of election by surviving spouse.
• Domestic Relations Law 236(B)(3), formalities for matrimonial agreements.
• Matter of Greiff, 92 N.Y.2d 341 (1998), burden of proof on challenges to prenuptial agreements.
• Matter of Riefberg, 58 N.Y.2d 134 (1983), abandonment as a disqualification and the objectant's burden.
• Matter of Maiden, 284 N.Y. 429 (1940), definition of abandonment for estate purposes.

This page is general legal information about New York law and is not legal advice for any particular situation. Deadlines under EPTL 5-1.1-A are strict, and the facts of each estate determine whether an election has value.