N.Y. EPT Law § 5-1.1-A — New York Code / Act EPT / Article 5 / Part 1 / Section 5-1.1-A
Right of election by surviving spouse
Status: in_force

§ 5-1.1-A Right of election by surviving spouse\n  (a) Where a decedent dies on or after September first, nineteen\nhundred ninety-two and is survived by a spouse, a personal right of\nelection is given to the surviving spouse to take a share of the\ndecedent's estate, subject to the following:\n  (1) For the purpose of this section, the decedent's estate includes\nthe capital value, as of the decedent's death, of any property described\nin subparagraph (b) (1).\n  (2) The elective share, as used in this paragraph, is the pecuniary\namount equal to the greater of (i) fifty thousand dollars or, if the\ncapital value of the net estate is less than fifty thousand dollars,\nsuch capital value, or (ii) one third of the net estate. In computing\nthe net estate, debts, administration expenses and reasonable funeral\nexpenses shall be deducted, but all estate taxes shall be disregarded,\nexcept that nothing contained herein relieves the surviving spouse from\ncontributing to all such taxes the amounts apportioned against him or\nher under 2-1.8.\n  (3) The term "testamentary provision", as used in this paragraph,\nincludes, in addition to dispositions made by the decedent's will,\ndistributions of property pursuant to 4-1.1 and any transaction\ndescribed as a testamentary substitute in subparagraph (b) (1).\n  (4) The share of the testamentary provisions to which the surviving\nspouse is entitled hereunder (the "net elective share") is his or her\nelective share, as defined in subparagraphs (1) and (2), reduced by the\ncapital value of any interest which passes absolutely from the decedent\nto such spouse, or which would have passed absolutely from the decedent\nto such spouse but was renounced by the spouse, (i) by intestacy, (ii)\nby testamentary substitute as described in subparagraph (b) (1), or\n(iii) by disposition under the decedent's last will.\n  (A) Unless the decedent has provided otherwise, if a spouse elects\nunder this section, such election shall have the same effect with\nrespect to any interest which passes or would have passed to the spouse,\nother than absolutely, as though the spouse died on the same date but\nimmediately before the death of the decedent.\n  (B) For the purposes of this subparagraph (4), (i) an interest in\nproperty shall be deemed to pass other than absolutely from the decedent\nto the spouse if the interest so passing consists of less than the\ndecedent's entire interest in that property or consists of any interest\nin a trust or trust equivalent created by the decedent; and (ii) an\ninterest in property shall be deemed to pass absolutely from the\ndecedent to the spouse if it is not deemed to pass other than\nabsolutely.\n  (5) Where a decedent dies before September first, nineteen hundred\nninety-four, paragraphs (c)(1)(D) through (c)(1)(K) of section 5-1.1\nshall apply except that the words "fifty thousand dollars" shall be\nsubstituted for the words "ten thousand dollars" wherever they appear in\nsuch paragraphs.\n  (b) Inter vivos dispositions treated as testamentary substitutes for\nthe purpose of election by surviving spouse.\n  (1) Where a person dies after August thirty-first, nineteen hundred\nninety-two and is survived by a spouse who exercises a right of election\nunder paragraph (a), the transactions affected by and property interests\nof the decedent described in clauses (A) through (H), whether benefiting\nthe surviving spouse or any other person, shall be treated as\ntestamentary substitutes and the capital value thereof, as of the\ndecedent's death, shall be included in the net estate subject to the\nsurviving spouse's elective right except to the extent that the\nsurviving spouse has executed a waiver of release pursuant to paragraph\n(e) with respect thereto. Notwithstanding the foregoing, a transaction,\nother than a transaction described in clause (G), that is irrevocable or\nis revocable only with the consent of a person having a substantial\nadverse interest (including any such transactions with respect to which\nthe decedent retained a special power of appointment as defined in\n10-3.2), will constitute a testamentary substitute only if it is\neffected after the date of the marriage.\n  (A) Gifts causa mortis.\n  (B) The aggregate transfers of property (including the transfer,\nrelease or relinquishment of any property interest which, but for such\ntransfer, release or relinquishment, would come within the scope of\nclause (F)), other than gifts causa mortis and transfers coming within\nthe scope of clauses (G) and (H), to or for the benefit of any person,\nmade after August thirty-first, nineteen hundred ninety-two, and within\none year of the death of the decedent, to the extent that the decedent\ndid not receive adequate and full consideration in money or money's\nworth for such transfers; provided, however, that any portion of any\nsuch transfer that was excludible from taxable gifts pursuant to\nsubsections (b) and (e) of section two thousand five hundred three of\nthe United States Internal Revenue Code, including any amounts excluded\nas a result of the election by the surviving spouse to treat any such\ntransfer as having been made one half by him or her, shall not be\ntreated as a testamentary substitute.\n  (C) Money deposited, together with all dividends or interest credited\nthereon, in a savings account in the name of the decedent in trust for\nanother person, with a banking organization, savings and loan\nassociation, foreign banking corporation or organization or bank or\nsavings and loan association organized under the laws of the United\nStates, and remaining on deposit at the date of the decedent's death.\n  (D) Money deposited after August thirty-first, nineteen hundred\nsixty-six, together with all dividends or interest credited thereon, in\nthe name of the decedent and another person and payable on death,\npursuant to the terms of the deposit or by operation of law, to the\nsurvivor, with a banking organization, savings and loan association,\nforeign banking corporation or organization or bank or savings and loan\nassociation organized under the laws of the United States, and remaining\non deposit at the date of the decedent's death.\n  (E) Any disposition of property made by the decedent whereby property,\nat the date of his or her death, is held (i) by the decedent and another\nperson as joint tenants with a right of survivorship or as tenants by\nthe entirety where the disposition was made after August thirty-first,\nnineteen hundred sixty-six, or (ii) by the decedent and is payable on\nhis or her death to a person other than the decedent or his or her\nestate.\n  (F) Any disposition of property or contractual arrangement made by the\ndecedent, in trust or otherwise, to the extent that the decedent (i)\nafter August thirty-first, nineteen hundred ninety-two, retained for his\nor her life or for any period not ascertainable without reference to his\nor her death or for any period which does not in fact end before his or\nher death the possession or enjoyment of, or the right to income from,\nthe property except to the extent that such disposition or contractual\narrangement was for an adequate consideration in money or money's worth;\nor (ii) at the date of his or her death retained either alone or in\nconjunction with any other person who does not have a substantial\nadverse interest, by the express provisions of the disposing instrument,\na power to revoke such disposition or a power to consume, invade or\ndispose of the principal thereof. The provisions of this subparagraph\nshall not affect the right of any income beneficiary to the income\nundistributed or accrued at the date of death nor shall they impair or\ndefeat any right which has vested on or before August thirty-first,\nnineteen hundred ninety-two.\n  (G) Any money, securities or other property payable under a thrift,\nsavings, retirement, pension, deferred compensation, death benefit,\nstock bonus or profit-sharing plan, account, arrangement, system or\ntrust, except that with respect to a plan to which subsection (a) (11)\nof section four hundred one of the United States Internal Revenue Code\napplies or a defined contribution plan to which such subsection does not\napply pursuant to paragraph (B) (iii) thereof, only to the extent of\nfifty percent of the capital value thereof. Notwithstanding the\nforegoing, a transaction described herein shall not constitute a\ntestamentary substitute if the decedent designated the beneficiary or\nbeneficiaries of the plan benefits on or before September first,\nnineteen hundred ninety-two and did not change such beneficiary\ndesignation thereafter.\n  (H) Any interest in property to the extent the passing of the\nprincipal thereof to or for the benefit of any person was subject to a\npresently exercisable general power of appointment, as defined in\nsection two thousand forty-one of the United States Internal Revenue\nCode, held by the decedent immediately before his or her death or which\nthe decedent, within one year of his or her death, released (except to\nthe extent such release results from a lapse of the power which is not\ntreated as a release pursuant to section two thousand forty-one of the\nUnited States Internal Revenue Code) or exercised in favor of any person\nother than himself or herself or his or her estate.\n  (I) A transfer of a security to a beneficiary pursuant to part 4 of\narticle 13 of this chapter.\n  (2) Transactions described in clause (D) or (E) (i) shall be treated\nas testamentary substitutes in the proportion that the funds on deposit\nwere the property of the decedent immediately before the deposit or the\nconsideration for the property described in clause (E) (i) was furnished\nby the decedent. The surviving spouse shall have the burden of\nestablishing the proportion of the decedent's contribution; provided,\nhowever, that where the surviving spouse is the other party to the\ntransaction, it will be conclusively presumed that the proportion of the\ndecedent's contribution is one-half. For the purpose of this\nsubparagraph, the court may accept such evidence as is relevant and\ncompetent, whether or not the person offering such evidence would\notherwise be competent to testify.\n  (3) The property referred to in clause (E) shall include United States\nsavings bonds and other United States obligations.\n  (4) The provisions of this paragraph shall not prevent a corporation\nor other person from paying or transferring any funds or property to a\nperson otherwise entitled thereto, unless there has been served\npersonally upon such corporation or other person a certified copy of an\norder enjoining such payment or transfer made by the surrogate's court\nhaving jurisdiction of the decedent's estate or by another court of\ncompetent jurisdiction. A corporation or other person paying or\ntransferring any funds or property described in clause (G) of\nsubparagraph one of this paragraph to a person otherwise entitled\nthereto, shall be held harmless and free from any liability for making\nsuch payment or transfer, in any action or proceeding which involves\nsuch funds or property. Such order may be made, on notice to such\npersons and in such manner as the court may direct, upon application of\nthe surviving spouse or any other interested party and on proof that the\nsurviving spouse has exercised his or her right of election under\nparagraph (a). Service of a certified copy of such order on the\ncorporation or other person holding such fund or property shall be a\ndefense, during the effective period of the order, in any action or\nproceeding which involves such fund or property.\n  (5) This paragraph shall not impair or defeat the rights of creditors\nof the decedent with respect to any matter as to which any such creditor\nhas rights.\n  (6) In case of a conflict between this paragraph and any other\nprovision of law affecting the transactions described in subparagraph\n(1) of this paragraph, this paragraph controls.\n  (7) If any part of this section is preempted by federal law with\nrespect to a payment or an item of property included in the net estate,\na person who, not for value, received that payment or item of property\nis obligated to return to the surviving spouse that payment or item of\nproperty or is personally liable to the surviving spouse for the amount\nof that payment or the value of that item of property, to the extent\nrequired under this section.\n  (c) General provisions governing right of election.\n  (1) Where an election has been made under this section, the will or\nother instrument making a testamentary provision, as the case may be, is\nvalid as to the residue after the share to which the surviving spouse is\nentitled has been deducted, and the terms of such will or instrument\nremain otherwise effective so far as possible, subject, however, to the\nprovisions of clause (a)(4)(A).\n  (2) Except as otherwise expressly provided in the will or other\ninstrument making a testamentary provision, ratable contribution to the\nshare to which the surviving spouse is entitled shall be made by the\nbeneficiaries and distributees (including the recipients of any such\ntestamentary provision), other than the surviving spouse, under the\ndecedent's will, by intestacy and other instruments making testamentary\nprovisions, which contribution may be made in cash or in the specific\nproperty received from the decedent by the person required to make such\ncontribution or partly in cash and partly in such property as such\nperson in his or her discretion shall determine.\n  (3) The right of election is personal to the surviving spouse, except\nthat an election may be made by:\n  (A) The guardian of the property of an infant spouse, when so\nauthorized by the court having jurisdiction of the decedent's estate.\n  (B) The committee of an incompetent spouse, when so authorized by the\ncourt that appointed the committee.\n  (C) The conservator of a conservatee spouse, when so authorized by the\ncourt that appointed the conservator.\n  (D) The guardian ad litem for the surviving spouse when so authorized\nby the court that appointed such guardian.\n  (E) A guardian authorized under Article 81 of the mental hygiene law,\nwhen so authorized by the court that appointed the guardian.\n  (4) Any question arising as to the right of election shall be\ndetermined by the court having jurisdiction of the decedent's estate in\na proceeding brought for that purpose on notice to all interested\npersons in such manner as the court may direct, or in a proceeding for\nthe judicial settlement of the accounts of the personal representative.\n  (5) Upon application by a surviving spouse who has made an election\nunder this section, the court may make an order cancelling such\nelection, provided that no adverse rights have intervened and no\nprejudice is shown to creditors of such spouse or other persons\ninterested in the estate. Such application shall be made on notice to\nsuch persons and in such manner as the court may direct. A certified\ncopy of such order shall be indexed and recorded in the same manner as a\nnotice of pendency of an action in the office of the clerk of the county\nin which any real property of the decedent is situated.\n  (6) The right of election granted by this section is not available to\nthe spouse of a decedent who was not domiciled in this state at the time\nof death, unless such decedent has elected, under paragraph (h) of\n3-5.1, to have the disposition of his or her property situated in this\nstate governed by the laws of this state.\n  (7) The decedent's estate shall include all property of the decedent\nwherever situated.\n  (8) An election made by the surviving spouse under this section is in\nlieu of any right of dower to which such spouse may be entitled.\n  (9) The references in this paragraph to sections of the United States\nInternal Revenue Code are to the Internal Revenue Code of 1986, as\namended. Such references, however, shall be deemed to constitute\nreferences to any corresponding provisions of any subsequent federal tax\ncode.\n  (d) Procedure for exercise of right of election.\n  (1) An election under this section must be made within six months from\nthe date of issuance of letters testamentary or of administration, as\nthe case may be, but in no event later than two years after the date of\ndecedent's death, except as otherwise provided in subparagraph 2 of this\nparagraph. Written notice of such election shall be served upon any\npersonal representative in the manner herein provided, or upon a person\nnamed as executor in a will on file in the surrogate's court in a case\nwhere such will has not yet been admitted to probate, and the original\nthereof shall be filed and recorded, with proof of service, in the\nsurrogate's court in which such letters were issued within six months\nfrom the date of the issuance of letters but in no event later than two\nyears from the date of decedent's death, except as otherwise provided in\nsubparagraph 2 of this paragraph. Such notice may be served by mailing a\ncopy thereof, addressed to any personal representative, or to the\nnominated executor, as the case may be, at the place of residence stated\nin the designation required by section 708 of the surrogate's court\nprocedure act, to the domicile address of such nominated executor, or in\nsuch other manner as the surrogate may direct.\n  (2) The time to make such election may be extended before expiration\nby an order of the surrogate's court from which such letters issued for\na further period not exceeding six months upon any one application. If\nthe spouse defaults in filing such election within the time provided in\nsubparagraph (1) of this paragraph, the surrogate's court may relieve\nthe spouse from such default and authorize the making of an election\nwithin the period fixed by the order, provided that no decree settling\nthe account of the personal representative has been made and that twelve\nmonths have not elapsed since the issuance of the letters, and two years\nhave not elapsed since the decedent's date of death, in the case of\ninitial application; except that the court may, in its discretion for\ngood cause shown, extend the time to make such election beyond such\nperiod of two years. An application for relief from the default and for\nan extension of time to elect shall be made upon a petition showing\nreasonable cause and on notice to such persons and in such manner as the\nsurrogate may direct. A certified copy of such order shall be indexed\nand recorded in the same manner as a notice of pendency of an action in\nthe office of the clerk of each county in which real property of the\ndecedent is situated.\n  (3) The time limited in this paragraph for making an election is\nexclusive and shall not be suspended or otherwise affected by any\nprovision of law, except that the surrogate may, in his or her\ndiscretion, permit an election to be made in behalf of an infant or\nincompetent spouse at any time up to, but no later than, the entry of\nthe decree of the first judicial account of the representative of the\nestate, made more than seven months after the issuance of letters.\n  (e) Waiver or release of right of election.\n  (1) A spouse, during the lifetime of the other, may waive or release a\nright of election, granted by this section, against a particular or any\nlast will or a testamentary substitute, as described in subparagraph (b)\n(1) made by the other spouse. A waiver or release of all rights in the\nestate of the other spouse is a waiver or release of a right of election\nagainst any such last will or testamentary provision.\n  (2) To be effective under this section, a waiver or release must be in\nwriting and subscribed by the maker thereof, and acknowledged or proved\nin the manner required by the laws of this state for the recording of a\nconveyance of real property.\n  (3) Such a waiver or release is effective, in accordance with its\nterms, whether:\n  (A) Executed before or after the marriage of the spouses.\n  (B) Executed before, on or after September first, nineteen hundred\nsixty-six.\n  (C) Unilateral in form, executed only by the maker thereof, or\nbilateral in form, executed by both spouses.\n  (D) Executed with or without consideration.\n  (E) Absolute or conditional.\n  (4) If there is in effect at the time of the decedent's death a\nwaiver, or a consent to the decedent's waiver, executed by the surviving\nspouse with respect to any survivor benefit, or right to such benefit,\nunder subsection (a) (11) of section four hundred one or section four\nhundred seventeen of the United States Internal Revenue Code, then such\nwaiver shall be deemed to be a waiver within the meaning of this\nparagraph (e) against the testamentary substitute constituting such\nbenefit.\n