Spousal Right of Election
In New York, a spouse is entitled to receive the protections of the Spousal Right of Election statute, codified as EPTL 5-1.1(A). Under this rule, a surviving spouse has the right to receive the greater of fifty thousand ($50,000) dollars, or one-third (1/3) of the “net estate.”
What is the Spousal Right of Election?
New York laws protects the spouse from being disinherited. Under the law, a spouse is entitled to an “elective share” of the assets which is defined as the greater of $50,000.00 or one-third of the estate which includes property such as joint bank accounts and certain assets which are known as “testamentary substitutes.”This means that even if your Will leaves nothing to your spouse, or leaves less than one-third to your spouse, or even leaves one-third to your spouse in a Trust, then your spouse has the right to ask the Court to recalculate the amount they get and increase it to one-third of your entire estate. The word estate, in this context, includes gifts you previously made to other people as well as to your spouse.
A surviving spouse of a decedent in a same-sex marriage may now exercise a right of election upon the death of his or her spouse. However, with few exceptions, there is no right of election to common law spouse in New York.
In addition, only a surviving spouse has a statutory right of election. A person may completely disinherit his or her children and their issue by expressly doing so in his or her will, or by simply electing not to make any provision for them in the will.
How Do You Calculate the Spousal Right of Election?
To calculate the value of the spousal right of election, you have to look at the date of death value of the “net estate” assets. The net estate, for purposes of the right of election, is computed by totaling:
- All property passing under Decedent’s Will;
- All property qualifying as a testamentary substitute; and
- All property of decedent passing to distributees under the laws of intestacy as codified by EPTL 4-1.1.
The value of the “net estate” against which the right of election is exercised does not increase by the value of income earned by the estate, or the appreciation of estate assets, during the course of administration; nor does it shrink by depreciation of estate assets during administration
Testamentary substitutes are assets that pass outside of the Will. For instance, if a spouse wants to disinherit or reduce the amount of assets that the surviving spouse can receive, then the spouse can try to give away assets during his or her lifetime in several ways. In addition if a spouse has made certain assets joint with his surviving spouse, this will also affect the calculation of how much more the surviving spouse can receive.
Testamentary substitutes are:
- Gifts made by the decedent in contemplation of death
- Gifts made within one year of death.
- Totten trust accounts
- Joint bank accounts
- Jointly held property or pay on death property
- United States savings bonds
- Property where Decedent had a life estate
- Retirement accounts (with some limitations)
- Property where Decedent had a power of appointment
Note that life insurance is not considered a testamentary substitute subject to the spousal right of election.
After adding up the “net estate,” you have to subtract the decedent’s debts, the estate’s administration expenses, and reasonable funeral expenses from the capital value of the testamentary dispositions, testamentary substitutes, and intestate property. Estate taxes are not deducted from the net estate on the theory that the surviving spouse would have a marital deduction for any funds passing to them.
What is the Statute of Limitations for filing the Election?
The only person who can assert the spousal right of election is the surviving spouse. The personal representative of a deceased surviving spouse may not exercise a spousal right of election on his or her behalf. The right dies with the death of the surviving spouse if the notice of election is not filed during the surviving spouse’s lifetime.
The spousal right of election notice must be filed and asserted within the prescribed time period, i.e., within six months of the issuance of Letters Testamentary but in no event later than two years from the date of decedent’s death. Under EPTL 5-1.1, if filing occurs within six months of the issuance of letters it is timely even if more than two years from decedent’s death has elapsed. This is a strict deadline. If you do not serve the notice of right of election within this time period, you may not serve it as of right. You must get court approval to serve a late notice of right of election.
To serve the notice, the statute clearly requires a written notice of election. Simply opposing the probate of the Will is insufficient. There is no requirement that the notice be acknowledged; the signature of the person exercising the right is sufficient. However, it has become customary to have the notice of election acknowledged.
The notice may be mailed to the personal representative, or to the nominated executor, of the decedent’s estate at his or her designated residence. An affidavit of service is required, and should, with the original notice, be filed with the Surrogate’s Court in which letters were issued to the personal representative.
A failure to file the notice can result in the loss of the elective right. Both service upon the personal representative of the estate and filing with the court clerk are required. Service upon the estate representative does not dispense with the requirement that the notice of election be filed with the court.
How Can an Estate Litigation Attorney Assist with Protecting Your Spousal Right of Election?
An Estate Litigation Attorney can help you calculate your spousal right of election, serve the notice of intent to elect against the estate, and ultimately file the Petition to Determine the elective share.
For more information, please contact Guardianship, probate and estate planning attorney Regina Kiperman:
Or visit her at:
40 Wall Street
New York, NY 10005
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