Generally speaking, a Testator has the right to choose estate beneficiaries and to decide what share of his/her estate each beneficiary will receive in the Testator’s Last Will and Testament. One important exception to that general rule in New York is the surviving spouse’s right of election. Whether you are creating your own Will or are a beneficiary of an estate, understanding the right of election is important. With that in mind, the Long Island estate planning attorneys at Eghrari Law Firm explain the surviving spouse right of election in New York.
Last Will and Testament Basics
The primary benefit to executing a Last Will and Testament is the ability to dictate who will inherit assets from your estate and precisely what assets each beneficiary will inherit. As long as a Testator (creator of the Will) was competent at the time the Will was executed, a Testator can (with a few legal limitations such as the inability of a minor to inherit directly from an estate) distribute an estate as he/she pleases. That also means that a Testator can intentionally leave someone out of his/her Will. In New York, however, you cannot completely disinherit a spouse.
What Is a Surviving Spouse Right of Election?
New York is one of several states that has a law ensuring that a spouse cannot be entirely disinherited. Governed by § 5-1.1 of Estates, Powers & Trusts, the “Right of Election by Surviving Spouse” grants a surviving spouse a personal right of election to take against a Will. The Right of Election grants a surviving spouse the greater of $50,000, or one-third of the decedent’s net estate, calculated at the decedent’s date of death. Certain conduct, such as abandonment or failure to support, can disqualify a surviving spouse from the right to elect against the Will.
How Is the Value of the Decedent’s Estate Calculated?
To determine whether one-third of the decedent’s net estate is greater than $50,000 you must know how the value of the net estate is calculated. The value is determined by adding the value of all probate assets and certain non-probate assets (referred to as “testamentary substitutes”) and deducting debts, funeral expenses, and probate expenses. Testamentary substitutes include things such as:
- The decedent’s interest in jointly owned property.
- Gifts made in contemplation of death.
- Outright gifts if made in the preceding year.
- Totten Trusts
- Certain pension and retirement plans
- Certain trust assets
How Does a Surviving Spouse Exercise a Right of Election?
To exercise the Right of Election, a surviving spouse must file a Notice of Election with the appropriate Surrogate’s Court and serve a copy upon the Executor or Administrator of the estate. A surviving spouse only has six months from the issuance of Letters Testamentary (appointing an Executor) or Letters of Administration (appointing an Administrator) to file the Notice of Election.
The New York laws and procedures relating to the surviving spouse Right of Election are often complicated and confusing. Always consult with an experienced New York estate planning attorney to be sure you understand how the Right to Election rules impact your estate plan or your right to inherit.
Contact Long Island Estate Planning Attorneys
For more information, please join us for an upcoming FREE seminar. If you have additional questions or concerns about the surviving spouse right of election in New York, contact the Long Island estate planning attorneys at Eghrari Law Firm by calling us at 631-265-0599 to schedule your appointment.
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