N.Y. EPT. LAW § 5-1.1-A : NY Code - Section 5-1.1-A: Right of election by surviving spouse
Search N.Y. EPT. LAW § 5-1.1-A : NY Code - Section 5-1.1-A: Right of election by surviving spouse
(a) Where a decedent dies on or after September first, nineteen
hundred ninety-two and is survived by a spouse, a personal right of
election is given to the surviving spouse to take a share of the
decedent's estate, subject to the following:
(1) For the purpose of this section, the decedent's estate includes
the capital value, as of the decedent's death, of any property described
in subparagraph (b) (1).
(2) The elective share, as used in this paragraph, is the pecuniary
amount equal to the greater of (i) fifty thousand dollars or, if the
capital value of the net estate is less than fifty thousand dollars,
such capital value, or (ii) one third of the net estate. In computing
the net estate, debts, administration expenses and reasonable funeral
expenses shall be deducted, but all estate taxes shall be disregarded,
except that nothing contained herein relieves the surviving spouse from
contributing to all such taxes the amounts apportioned against him or
her under 2-1.8.
(3) The term "testamentary provision", as used in this paragraph,
includes, in addition to dispositions made by the decedent's will,
distributions of property pursuant to 4-1.1 and any transaction
described as a testamentary substitute in subparagraph (b) (1).
(4) The share of the testamentary provisions to which the surviving
spouse is entitled hereunder (the "net elective share") is his or her
elective share, as defined in subparagraphs (1) and (2), reduced by the
capital value of any interest which passes absolutely from the decedent
to such spouse, or which would have passed absolutely from the decedent
to such spouse but was renounced by the spouse, (i) by intestacy, (ii)
by testamentary substitute as described in subparagraph (b) (1), or
(iii) by disposition under the decedent's last will.
(A) Unless the decedent has provided otherwise, if a spouse elects
under this section, such election shall have the same effect with
respect to any interest which passes or would have passed to the spouse,
other than absolutely, as though the spouse died on the same date but
immediately before the death of the decedent.
(B) For the purposes of this subparagraph (4), (i) an interest in
property shall be deemed to pass other than absolutely from the decedent
to the spouse if the interest so passing consists of less than the
decedent's entire interest in that property or consists of any interest
in a trust or trust equivalent created by the decedent; and (ii) an
interest in property shall be deemed to pass absolutely from the
decedent to the spouse if it is not deemed to pass other than
(5) Where a decedent dies before September first, nineteen hundred
ninety-four, paragraphs (c)(1)(D) through (c)(1)(K) of section 5-1.1
shall apply except that the words "fifty thousand dollars" shall be
substituted for the words "ten thousand dollars" wherever they appear in
(b) Inter vivos dispositions treated as testamentary substitutes for
the purpose of election by surviving spouse.
(1) Where a person dies after August thirty-first, nineteen hundred
ninety-two and is survived by a spouse who exercises a right of election
under paragraph (a), the transactions affected by and property interests
of the decedent described in clauses (A) through (H), whether benefiting
the surviving spouse or any other person, shall be treated as
testamentary substitutes and the capital value thereof, as of the
decedent's death, shall be included in the net estate subject to the
surviving spouse's elective right except to the extent that the
surviving spouse has executed a waiver of release pursuant to paragraph
(e) with respect thereto. Notwithstanding the foregoing, a transaction,
other than a transaction described in clause (G), that is irrevocable or
is revocable only with the consent of a person having a substantial
adverse interest (including any such transactions with respect to which
the decedent retained a special power of appointment as defined in
10-3.2), will constitute a testamentary substitute only if it is
effected after the date of the marriage.
(A) Gifts causa mortis.
(B) The aggregate transfers of property (including the transfer,
release or relinquishment of any property interest which, but for such
transfer, release or relinquishment, would come within the scope of
clause (F)), other than gifts causa mortis and transfers coming within
the scope of clauses (G) and (H), to or for the benefit of any person,
made after August thirty-first, nineteen hundred ninety-two, and within
one year of the death of the decedent, to the extent that the decedent
did not receive adequate and full consideration in money or money's
worth for such transfers; provided, however, that any portion of any
such transfer that was excludible from taxable gifts pursuant to
subsections (b) and (e) of section two thousand five hundred three of
the United States Internal Revenue Code, including any amounts excluded
as a result of the election by the surviving spouse to treat any such
transfer as having been made one half by him or her, shall not be
treated as a testamentary substitute.
(C) Money deposited, together with all dividends or interest credited
thereon, in a savings account in the name of the decedent in trust for
another person, with a banking organization, savings and loan
association, foreign banking corporation or organization or bank or
savings and loan association organized under the laws of the United
States, and remaining on deposit at the date of the decedent's death.
(D) Money deposited after August thirty-first, nineteen hundred
sixty-six, together with all dividends or interest credited thereon, in
the name of the decedent and another person and payable on death,
pursuant to the terms of the deposit or by operation of law, to the
survivor, with a banking organization, savings and loan association,
foreign banking corporation or organization or bank or savings and loan
association organized under the laws of the United States, and remaining
on deposit at the date of the decedent's death.
(E) Any disposition of property made by the decedent whereby property,
at the date of his or her death, is held (i) by the decedent and another
person as joint tenants with a right of survivorship or as tenants by
the entirety where the disposition was made after August thirty-first,
nineteen hundred sixty-six, or (ii) by the decedent and is payable on
his or her death to a person other than the decedent or his or her
(F) Any disposition of property or contractual arrangement made by the
decedent, in trust or otherwise, to the extent that the decedent (i)
after August thirty-first, nineteen hundred ninety-two, retained for his
or her life or for any period not ascertainable without reference to his
or her death or for any period which does not in fact end before his or
her death the possession or enjoyment of, or the right to income from,
the property except to the extent that such disposition or contractual
arrangement was for an adequate consideration in money or money's worth;
or (ii) at the date of his or her death retained either alone or in
conjunction with any other person who does not have a substantial
adverse interest, by the express provisions of the disposing instrument,
a power to revoke such disposition or a power to consume, invade or
dispose of the principal thereof. The provisions of this subparagraph
shall not affect the right of any income beneficiary to the income
undistributed or accrued at the date of death nor shall they impair or
defeat any right which has vested on or before August thirty-first,
nineteen hundred ninety-two.
(G) Any money, securities or other property payable under a thrift,
savings, retirement, pension, deferred compensation, death benefit,
stock bonus or profit-sharing plan, account, arrangement, system or
trust, except that with respect to a plan to which subsection (a) (11)
of section four hundred one of the United States Internal Revenue Code
applies or a defined contribution plan to which such subsection does not
apply pursuant to paragraph (B) (iii) thereof, only to the extent of
fifty percent of the capital value thereof. Notwithstanding the
foregoing, a transaction described herein shall not constitute a
testamentary substitute if the decedent designated the beneficiary or
beneficiaries of the plan benefits on or before September first,
nineteen hundred ninety-two and did not change such beneficiary
(H) Any interest in property to the extent the passing of the
principal thereof to or for the benefit of any person was subject to a
presently exercisable general power of appointment, as defined in
section two thousand forty-one of the United States Internal Revenue
Code, held by the decedent immediately before his or her death or which
the decedent, within one year of his or her death, released (except to
the extent such release results from a lapse of the power which is not
treated as a release pursuant to section two thousand forty-one of the
United States Internal Revenue Code) or exercised in favor of any person
other than himself or herself or his or her estate.
(I) A transfer of a security to a beneficiary pursuant to part 4 of
article 13 of this chapter.
(2) Transactions described in clause (D) or (E) (i) shall be treated
as testamentary substitutes in the proportion that the funds on deposit
were the property of the decedent immediately before the deposit or the
consideration for the property described in clause (E) (i) was furnished
by the decedent. The surviving spouse shall have the burden of
establishing the proportion of the decedent's contribution; provided,
however, that where the surviving spouse is the other party to the
transaction, it will be conclusively presumed that the proportion of the
decedent's contribution is one-half. For the purpose of this
subparagraph, the court may accept such evidence as is relevant and
competent, whether or not the person offering such evidence would
otherwise be competent to testify.
(3) The property referred to in clause (E) shall include United States
savings bonds and other United States obligations.
(4) The provisions of this paragraph shall not prevent a corporation
or other person from paying or transferring any funds or property to a
person otherwise entitled thereto, unless there has been served
personally upon such corporation or other person a certified copy of an
order enjoining such payment or transfer made by the surrogate's court
having jurisdiction of the decedent's estate or by another court of
competent jurisdiction. A corporation or other person paying or
transferring any funds or property described in clause (G) of
subparagraph one of this paragraph to a person otherwise entitled
thereto, shall be held harmless and free from any liability for making
such payment or transfer, in any action or proceeding which involves
such funds or property. Such order may be made, on notice to such
persons and in such manner as the court may direct, upon application of
the surviving spouse or any other interested party and on proof that the
surviving spouse has exercised his or her right of election under
paragraph (a). Service of a certified copy of such order on the
corporation or other person holding such fund or property shall be a
defense, during the effective period of the order, in any action or
proceeding which involves such fund or property.
(5) This paragraph shall not impair or defeat the rights of creditors
of the decedent with respect to any matter as to which any such creditor
(6) In case of a conflict between this paragraph and any other
provision of law affecting the transactions described in subparagraph
(1) of this paragraph, this paragraph controls.
(7) If any part of this section is preempted by federal law with
respect to a payment or an item of property included in the net estate,
a person who, not for value, received that payment or item of property
is obligated to return to the surviving spouse that payment or item of
property or is personally liable to the surviving spouse for the amount
of that payment or the value of that item of property, to the extent
required under this section.
(c) General provisions governing right of election.
(1) Where an election has been made under this section, the will or
other instrument making a testamentary provision, as the case may be, is
valid as to the residue after the share to which the surviving spouse is
entitled has been deducted, and the terms of such will or instrument
remain otherwise effective so far as possible, subject, however, to the
provisions of clause (a)(4)(A).
(2) Except as otherwise expressly provided in the will or other
instrument making a testamentary provision, ratable contribution to the
share to which the surviving spouse is entitled shall be made by the
beneficiaries and distributees (including the recipients of any such
testamentary provision), other than the surviving spouse, under the
decedent's will, by intestacy and other instruments making testamentary
provisions, which contribution may be made in cash or in the specific
property received from the decedent by the person required to make such
contribution or partly in cash and partly in such property as such
person in his or her discretion shall determine.
(3) The right of election is personal to the surviving spouse, except
that an election may be made by:
(A) The guardian of the property of an infant spouse, when so
authorized by the court having jurisdiction of the decedent's estate.
(B) The committee of an incompetent spouse, when so authorized by the
court that appointed the committee.
(C) The conservator of a conservatee spouse, when so authorized by the
court that appointed the conservator.
(D) The guardian ad litem for the surviving spouse when so authorized
by the court that appointed such guardian.
(E) A guardian authorized under Article 81 of the mental hygiene law,
when so authorized by the court that appointed the guardian.
(4) Any question arising as to the right of election shall be
determined by the court having jurisdiction of the decedent's estate in
a proceeding brought for that purpose on notice to all interested
persons in such manner as the court may direct, or in a proceeding for
the judicial settlement of the accounts of the personal representative.
(5) Upon application by a surviving spouse who has made an election
under this section, the court may make an order cancelling such
election, provided that no adverse rights have intervened and no
prejudice is shown to creditors of such spouse or other persons
interested in the estate. Such application shall be made on notice to
such persons and in such manner as the court may direct. A certified
copy of such order shall be indexed and recorded in the same manner as a
notice of pendency of an action in the office of the clerk of the county
in which any real property of the decedent is situated.
(6) The right of election granted by this section is not available to
the spouse of a decedent who was not domiciled in this state at the time
of death, unless such decedent has elected, under paragraph (h) of
3-5.1, to have the disposition of his or her property situated in this
state governed by the laws of this state.
(7) The decedent's estate shall include all property of the decedent
(8) An election made by the surviving spouse under this section is in
lieu of any right of dower to which such spouse may be entitled.
(9) The references in this paragraph to sections of the United States
Internal Revenue Code are to the Internal Revenue Code of 1986, as
amended. Such references, however, shall be deemed to constitute
references to any corresponding provisions of any subsequent federal tax
(d) Procedure for exercise of right of election.
(1) An election under this section must be made within six months from
the date of issuance of letters testamentary or of administration, as
the case may be, but in no event later than two years after the date of
decedent's death. Written notice of such election shall be served upon
any personal representative in the manner herein provided, or upon a
person named as executor in a will on file in the surrogate's court in a
case where such will has not yet been admitted to probate, and the
original thereof shall be filed and recorded, with proof of service, in
the surrogate's court in which such letters were issued within six
months from the date of the issuance of letters but in no event later
than two years from the date of decedent's death. Such notice may be
served by mailing a copy thereof, addressed to any personal
representative, or to the nominated executor, as the case may be, at the
place of residence stated in the designation required by SCPA 708 or in
such other manner as the surrogate may direct.
(2) The time to make such election may be extended before expiration
by an order of the surrogate's court from which such letters issued for
a further period not exceeding six months upon any one application. If
the spouse defaults in filing such election within the time provided in
subparagraph (d) (1), the surrogate's court may relieve the spouse from
such default and authorize the making of an election within the period
fixed by the order, provided that no decree settling the account of the
personal representative has been made and that twelve months have not
elapsed since the issuance of the letters. An application for relief
from the default and for an extension of time to elect shall be made
upon a petition showing reasonable cause and on notice to such persons
and in such manner as the surrogate may direct. A certified copy of such
order shall be indexed and recorded in the same manner as a notice of
pendency of an action in the office of the clerk of each county in which
real property of the decedent is situated.
(3) The time limited in this paragraph for making an election is
exclusive and shall not be suspended or otherwise affected by any
provision of law, except that the surrogate may, in his or her
discretion, permit an election to be made in behalf of an infant or
incompetent spouse at any time up to, but no later than, the entry of
the decree of the first judicial account of the representative of the
estate, made more than seven months after the issuance of letters.
(e) Waiver or release of right of election.
(1) A spouse, during the lifetime of the other, may waive or release a
right of election, granted by this section, against a particular or any
last will or a testamentary substitute, as described in subparagraph (b)
(1) made by the other spouse. A waiver or release of all rights in the
estate of the other spouse is a waiver or release of a right of election
against any such last will or testamentary provision.
(2) To be effective under this section, a waiver or release must be in
writing and subscribed by the maker thereof, and acknowledged or proved
in the manner required by the laws of this state for the recording of a
conveyance of real property.
(3) Such a waiver or release is effective, in accordance with its
(A) Executed before or after the marriage of the spouses.
(B) Executed before, on or after September first, nineteen hundred
(C) Unilateral in form, executed only by the maker thereof, or
bilateral in form, executed by both spouses.
(D) Executed with or without consideration.
(E) Absolute or conditional.
(4) If there is in effect at the time of the decedent's death a
waiver, or a consent to the decedent's waiver, executed by the surviving
spouse with respect to any survivor benefit, or right to such benefit,
under subsection (a) (11) of section four hundred one or section four
hundred seventeen of the United States Internal Revenue Code, then such
waiver shall be deemed to be a waiver within the meaning of this
paragraph (e) against the testamentary substitute constituting such
Right of election by surviving spouse
RIGHTS OF SURVIVING SPOUSE
Disqualification as surviving spouse