EPTL 5-1.1-A: NY Surviving Spouse’s Right of Election

Under New York’s Estates, Powers and Trusts Law Section 5-1.1-A, a surviving spouse’s right of election in NY guarantees you the greater of $50,000 or one-third of your deceased spouse’s net estate, no matter what the will says.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse The right reaches beyond probate assets to pull in accounts, joint property, and other transfers your spouse may have set up to pass outside the will. But you have to claim it in writing, and the deadlines are short.

How Much the Elective Share Is Worth

The formula is simple: the greater of $50,000 or one-third of the net estate. If the whole net estate is worth less than $50,000, you get whatever is there.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse The $50,000 floor is fixed by statute and is not adjusted for inflation.

The net estate is the gross estate minus debts, administration expenses, and reasonable funeral costs. Estate taxes are not deducted before the elective share is calculated; the statute says taxes are “disregarded” for this purpose. You will still have to contribute your apportioned share of any estate taxes under EPTL 2-1.8, but the share itself is figured on the pre-tax number.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

What Reduces Your Share, and What Doesn’t

The elective share is not added on top of what you already inherit. Anything you receive outright from the estate, whether through the will, through intestacy, or through a testamentary substitute, is credited against the total. The remainder is called the “net elective share.”1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

The word “absolutely” carries a lot of weight in the statute. Only interests you receive with full ownership and control count against your share. A life estate in a trust, or income for life with the principal going elsewhere, does not count as an absolute interest. That means if the will leaves you a trust interest instead of an outright gift, the trust interest does not reduce what the estate still owes you, and you may be entitled to the full one-third outright. When you elect, any non-absolute interest the will left you is treated as if you had predeceased, unless the will provides otherwise.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

Assets the Statute Pulls Back Into the Estate

If the elective share only covered the probate estate, it would be easy to defeat. A person could retitle everything into joint accounts or payable-on-death designations and leave nothing to pass through the will. The statute prevents this by treating a wide category of non-probate transfers as “testamentary substitutes” and counting them toward the estate for elective share purposes.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

  • Gifts made in contemplation of death (causa mortis).
  • Property transferred within one year of death for less than full value, unless the transfer qualified for the federal annual gift tax exclusion of $19,000.2Internal Revenue Service. Gifts and Inheritances
  • Totten trusts (in-trust-for bank accounts), including accrued interest.
  • Pay-on-death accounts created after August 31, 1966.
  • Property held as joint tenants with right of survivorship or as tenants by the entirety, if created after August 31, 1966.
  • Transfers where the decedent kept the income, the use, or the power to revoke or redirect.
  • Certain powers of appointment held by the decedent at death.
  • Qualified pension and retirement benefits payable to someone other than the estate.

Each testamentary substitute is valued at its capital value on the date of death. If your late spouse kept meaningful control over or benefit from an asset, the statute is likely to sweep it in.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

Retirement Accounts: An Important Exception

Retirement benefits appear on the testamentary substitute list, but federal law limits what the state statute can actually reach. Employer-sponsored plans governed by the Employee Retirement Income Security Act (ERISA) are subject to federal preemption. In Boggs v. Boggs, the U.S. Supreme Court held that ERISA preempts state laws that try to redirect pension benefits away from the plan’s designated beneficiaries.3Justia US Supreme Court. Boggs v. Boggs, 520 U.S. 833 (1997)

If your late spouse’s 401(k) named a child or someone else as beneficiary, your ability to reach that money through the elective share is limited. ERISA independently requires spousal consent before a married participant can name a non-spouse beneficiary on most qualified plans, which provides its own protection.4U.S. Department of Labor. FAQs About Retirement Plans and ERISA The EPTL recognizes the overlap: a federal waiver of survivor benefits under the Internal Revenue Code counts as a state-law waiver of that testamentary substitute.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

IRAs are different. They are generally not governed by ERISA and remain within the reach of New York’s testamentary substitute rules. Whether an account is an ERISA-covered plan or a non-ERISA account is one of the most important practical questions in any elective share dispute involving retirement assets.

How to File and When It’s Due

The right does not happen automatically. You have to file a written notice of election and serve it on the estate’s personal representative, whether that is the executor named in the will or an administrator appointed by the court. The original notice, with proof of service, then gets filed with the Surrogate’s Court handling the estate. Service can be made by mailing a copy to the personal representative at the address in their court designation, or by another method the Surrogate directs.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse

Two deadlines apply, and the earlier one controls:

  • Six months from the date the Surrogate’s Court issues letters testamentary or letters of administration.
  • Two years from the date of death, regardless of when letters are issued.

Miss either deadline and the right is almost always gone for good. Courts have very little flexibility, and not knowing about the right is not a recognized excuse. If probate is underway, the clock is already running.

If the surviving spouse is incapacitated, a guardian, conservator, committee, or court-appointed guardian ad litem can file the election, but only with prior court authorization.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse Incapacity does not stop the clock, so families of a spouse with dementia or a serious illness need to move quickly.

When You’ve Already Given Up the Right

A written waiver, signed and acknowledged the way a real property deed is acknowledged, is enforceable. Prenuptial and postnuptial agreements commonly include one. The waiver can be signed before or after the marriage, can be one-sided or mutual, can be paid for or free, and can be absolute or conditional. A broad waiver of “all rights in the estate of the other spouse” is treated as a waiver of the elective share even if the document never uses that phrase, though a waiver can also be narrowed to specific assets.1New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse If you signed a prenup waiving inheritance rights, it almost certainly reaches the elective share, but the exact scope depends on the language.

When the Court Can Disqualify You

Even without a waiver, EPTL 5-1.2 lets the Surrogate’s Court strip a surviving spouse of the right to elect on any of the following grounds:5New York State Senate. New York Estates, Powers and Trusts Law 5-1.2 – Disqualification as Surviving Spouse

  • A final decree of divorce, annulment, or dissolution was in effect at the time of death.
  • The marriage was void from the start because it was incestuous, bigamous, or a prohibited remarriage under the Domestic Relations Law.
  • The surviving spouse obtained an out-of-state divorce that New York does not recognize.
  • A final separation judgment was entered against the surviving spouse and was still in effect at death.
  • The surviving spouse abandoned the decedent and the abandonment continued until death.
  • The surviving spouse had a legal duty to support the decedent, had the means to do it, and failed or refused, without resuming support before death.

Which side the separation judgment ran against matters. If the decedent was the party at fault, the surviving spouse keeps their rights. The burden of proof falls on whoever is challenging eligibility.

Federal Estate Tax Treatment

Under 26 U.S.C. § 2056, property passing to a surviving spouse generally qualifies for the unlimited marital deduction, and the statute expressly includes any statutory interest taken in lieu of dower or curtesy, which covers an EPTL 5-1.1-A elective share.6Office of the Law Revision Counsel. 26 USC 2056 – Bequests, Etc., to Surviving Spouse Because the elective share passes outright rather than through a conditional trust, it typically satisfies the deduction without running into the terminable interest rule. Paying the elective share does not increase the estate’s federal tax liability; it moves value into the surviving spouse’s hands, where it will eventually be taxed as part of the survivor’s own estate.