What is NY’s Elective Share?
Can you completely disinherit a spouse in New York? The answer is (generally) no, and the reason is New York’s elective share.
What is the Elective Share and why was it enacted?
In New York, the elective share is a legal mechanism that protects surviving spouses from being completely written out of a Will. It allows a surviving spouse to claim a portion of the deceased spouse’s estate, regardless of what the Will states. This right of election ensures that surviving spouses receive a fair share of the deceased’s assets, preventing them from being disinherited or left with an unfairly small inheritance.
What is the surviving spouse entitled to by statute?
In New York State, the surviving spouse can elect to choose the greater of either $50,000 or one-third of the deceased spouse’s net estate. The net estate includes both probate and non-probate assets, such as bank accounts of all kinds (including joint accounts), real estate, retirement plans, brokerage accounts, and more. A right of election can be exercised against assets transferred by Will or revocable trust, or those assets that have a named beneficiary who is not the spouse.
How does the surviving spouse make the election?
The right to receive the elective share is not automatic. The surviving spouse must serve a written election on the estate representative within 6 months after appointment of the representative or two years after the date of death, whichever comes first. This time limit can be extended by the court.
Can a spouse give up the right or be disqualified?
Yes, a spouse may waive their right to the elective share as part of a prenuptial or postnuptial agreement.
A spouse may lose the right of election by abandoning, failing to support, or divorcing the other spouse.
Why do you need experienced estate attorneys?
We know what the statutes require and can make sure that your estate plan does what you want it to do and meets all statutory requirements. Please call or e-mail for a consultation regarding your estate planning needs. We look forward to hearing from you!
The information provided herein does not, and is not intended to, constitute legal advice; instead, all information, content, and materials available here are for general informational purposes only.
