NY Est Pow & Trusts L § 5-1.1 (2021)
2021 New York Laws EPT - Estates, Powers and Trusts Article 5 - Family Rights Part 1 - Rights of Surviving Spouse 5-1.1 - Right of Election by Surviving Spouse

§ 5-1.1 Right of election by surviving spouse  (a)  Election  by  surviving spouse against will executed after August thirty-first, nineteen hundred thirty  and  prior  to  September  first, nineteen hundred sixty-six.  (1)  Where  a  testator  executes  a  will  after August thirty-first, nineteen hundred thirty but prior to September first,  nineteen  hundred sixty-six,  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:  (A)  For  the  purposes  of  this  section,  the elective share of the surviving spouse is one-third of the  net  estate  if  the  decedent  is survived  by one or more issue and, in all other cases, one-half of such net estate.   In computing the net  estate,  debts,  administration  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 under 2-1.8.  (B)  Where  the elective share is over twenty-five hundred dollars and the testator has made a testamentary disposition in trust of  an  amount equal  to  or  greater  than  the  elective share, with income therefrom payable to the surviving spouse for life, the surviving spouse  has  the limited  right  to  elect to take the sum of twenty-five hundred dollars absolutely, which shall be deducted from the principal of such trust and the terms of the will remain otherwise effective.  (C) Where the elective share of the surviving spouse does  not  exceed twenty-five hundred dollars, the surviving spouse has the right to elect to  take  his  elective  share absolutely, which shall be in lieu of any provision for his benefit in the will.  (D) Where the will contains an absolute disposition to  the  surviving spouse  of  or  in  excess of the sum of twenty-five hundred dollars and also a disposition in trust with income payable to such spouse for  life of  an  amount  equal  to  or  greater  than  the difference between the absolute disposition and his elective share, the surviving spouse has no right of election.  (E) Where the will contains an absolute disposition to  the  surviving spouse of an amount less than the sum of twenty-five hundred dollars and also  a disposition in trust with income payable to such spouse for life of an amount equal  to  or  greater  than  the  difference  between  the absolute  disposition  and  his elective share, the surviving spouse has the limited right to elect  to  take  the  sum  of  twenty-five  hundred dollars,  inclusive  of the amount of such absolute disposition, and the difference between such disposition and the sum of  twenty-five  hundred dollars shall be deducted from the principal of such trust and the terms of the will remain otherwise effective.  (F)  Where  the  aggregate  of  the  provisions  in  the  will for the surviving spouse, including  the  principal  of  a  trust,  an  absolute disposition  or  any other kind of testamentary disposition is less than the elective share, the surviving spouse has the limited right to  elect to  take  the  difference  between  such aggregate and the amount of the elective share, and the terms of the will remain otherwise effective. In every estate, the surviving spouse has the limited right to withdraw the sum of twenty-five hundred dollars if the elective share is equal to  or greater  than  that  amount.  Such  sum,  however,  is  inclusive of any absolute disposition, whether general or  specific.  Where  a  trust  is created  for  the  life of the surviving spouse, such sum of twenty-five hundred dollars or any lesser amount necessary to make up  that  sum  is payable from the principal of such trust.  (G)  The  provisions  of  this  paragraph  with respect to trusts with income payable for the life of the surviving spouse likewise apply to  a legal life estate, to an annuity for life or to any other disposition in the  will  by  which  income  is  payable  for the life of the surviving spouse.    In  computing  the value of the dispositions in the will, the capital value of the fund or other property producing the  income  shall be taken and not the value of the life estate.  (H)  The  grant of authority in a will to a fiduciary or his successor (i) to act without bond, (ii) to name his successor to act without bond, (iii) to sell assets of the estate upon terms  fixed  by  him,  (iv)  to invest  the  funds of the estate in other than legal investments, (v) to retain in the assets of the estate investments or property owned by  the testator  in  his  lifetime, (vi) to make distribution in kind, (vii) to make a binding and conclusive valuation of assets  for  the  purpose  of their  distribution,  (viii)  to  allocate  assets either outright or in trust for the life of a surviving spouse or (ix) to conduct the  affairs of  the  estate  with  partial  or  total  exoneration  from  the  legal responsibility of a fiduciary,  shall  not,  either  singly  or  in  the aggregate,  give  the  surviving  spouse  an  absolute right to take his elective share; but the surrogate's court  having  jurisdiction  of  the estate,  notwithstanding  the terms of the will, may, in its discretion, in an  appropriate  proceeding  by  the  surviving  spouse  or  upon  an accounting,  direct  and  enforce  for  the  protection of the surviving spouse an equitable distribution, allocation or valuation of the assets, enforce the liability of a fiduciary under the law and make  such  other directions,   consistent  with  the  provisions  and  purposes  of  this paragraph, as it may  consider  necessary  for  the  protection  of  the surviving spouse.  (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 sixty-six  and is survived by a spouse who exercises a right of election under  paragraph  (c),  the  following  transactions  effected  by  such decedent  at  any  time  after the date of the marriage and after August thirty-first,  nineteen  hundred  sixty-six,  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, included  in  the  net estate subject to the surviving spouse's elective right:  (A) Gifts causa mortis.  (B) Money  deposited,  after  August  thirty-first,  nineteen  hundred sixty-six,  together  with  all dividends 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.  (C) Money  deposited,  after  August  thirty-first,  nineteen  hundred sixty-six,  together with all dividends 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.  (D)  Any  disposition  of  property  made by the decedent after August thirty-first, nineteen hundred sixty-six whereby property  is  held,  at  the  date  of  his  death,  by  the decedent and another person as joint tenants with a right of survivorship or as tenants by the entirety.  (E)  Any  disposition  of  property  made by the decedent after August thirty-first, nineteen hundred sixty-six, in trust or otherwise, to  the extent that the decedent at the date of his death retained, either alone or  in conjunction with another person, 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 paragraph shall not affect the right of any income  beneficiary  to the income undistributed or accrued at the date of death.  (2) Nothing in this paragraph shall affect, impair or defeat the right of  any  person  entitled to receive (A) payment in money, securities or other property under  a  thrift,  savings,  pension,  retirement,  death benefit,  stock bonus or profit-sharing plan, system or trust, (B) money payable by an insurance company or a savings bank authorized to  conduct the  business  of  life  insurance  under  an  annuity or pure endowment contract, a policy of life, group life, industrial life or accident  and health  insurance  or a contract by such insurer relating to the payment of proceeds or avails thereof  or  (C)  payment  of  any  United  States savings  bond  payable to a designated person, and such transactions are not testamentary substitutes within the meaning of this paragraph.  (3) Transactions described  in  subparagraphs  (C)  or  (D)  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  held  as  joint  tenants  or  as tenants  by  the  entirety  was furnished by the decedent. The surviving spouse shall have the burden  of  establishing  the  proportion  of  the decedent's   contribution.  Where  the  other  party  to  a  transaction described in subparagraphs (C) or (D) is a surviving spouse, such spouse shall  have  the  burden  of  establishing   the   proportion   of   his contribution,  if  any.  For  the  purpose  of  this  subparagraph,  the surrogate's court may accept such evidence as is relevant and competent, whether or not the person offering  such  evidence  would  otherwise  be competent to testify.  (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.  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 right of election under paragraph (c).  Service of a certified copy of such order on  the  corporation  or other  person  holding  such  fund or property shall be a defense to it, during the effective period of the order, in any  action  or  proceeding brought against it 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 has rights.  (6) In case of  a  conflict  between  this  paragraph  and  any  other provision  of  law  affecting the transactions described in subparagraph (1), this paragraph controls.  (c)  Election  by  surviving  spouse  against   wills   executed   and testamentary provisions made after August thirty-first, nineteen hundred sixty-six;  election where decedent dies intestate as to all or any part of his estate.  (1) Where, after August thirty-first, nineteen  hundred  sixty-six,  a testator executes a will disposing of his entire estate, 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:  (A) For the purposes of this paragraph, the decedent's estate includes the capital value, as of the decedent's death, of any property described in subparagraph (b) (1).  (B) The elective share, as used in this paragraph, is one-third of the net  estate if the decedent is survived by one or more issue and, in all other cases, one-half of such net estate. In computing the  net  estate, debts,  administration 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 under 2-1.8.  (C) The term "testamentary provision",  as  used  in  this  paragraph, includes,  in  addition to dispositions made by the decedent's will, any transaction described as a testamentary substitute in  subparagraph  (b) (1).  (D)  Where  the  elective  share  is over ten thousand dollars and the decedent has by testamentary provision created  a  trust  in  an  amount equal  to  or  greater  than  the  elective share, with income therefrom payable to the surviving spouse for life, the surviving spouse  has  the limited  right  to  elect  to  take  the  sum  of  ten  thousand dollars absolutely, which shall be deducted from the principal of such trust and the terms of the instrument making  the  testamentary  provision  remain otherwise effective.  (E)  Where  the elective share of the surviving spouse does not exceed ten thousand dollars, the surviving spouse has the  right  to  take  the elective share absolutely, in lieu of any testamentary provision for his benefit.  (F) Where an absolute testamentary provision is made for the surviving spouse  of or in excess of ten thousand dollars, and also a provision in trust with income payable to such spouse for life of an amount equal  to or  greater  than  the  difference  between  such  absolute testamentary provision and his elective share, the surviving spouse has no  right  of election.  (G) Where an absolute testamentary provision is made for the surviving spouse  in  an  amount  less  than  ten  thousand  dollars,  and  also a testamentary provision in trust with income payable to such  spouse  for life  of  an amount equal to or greater than the difference between such absolute testamentary provision and his elective  share,  the  surviving spouse  has  the  limited right to take the sum of ten thousand dollars, inclusive of the amount of such absolute testamentary provision, and the difference between such absolute testamentary provision and the  sum  of ten  thousand  dollars shall be deducted from the principal of the trust and the terms of the instrument making the testamentary provision remain otherwise effective.  (H) Where  the  aggregate  of  the  testamentary  provisions  for  the surviving  spouse,  including  the  principal  of  a  trust, an absolute testamentary provision or any other kind of testamentary  provision,  is less than the elective share, the surviving spouse has the limited right to elect to take the difference between such aggregate and the amount of the  elective  share,  and  the  terms  of  the  instrument  making such testamentary provisions remain otherwise effective. In every estate, the surviving spouse has the limited  right  to  withdraw  the  sum  of  ten thousand  dollars if the elective share is equal to or greater than that amount. Such sum, however, is inclusive  of  any  absolute  testamentary  provision. Where a trust is created with income payable to the surviving spouse  for  life, such sum of ten thousand dollars or any lesser amount necessary to make up that sum is payable  from  the  principal  of  such trust.  (I)  The  provisions  of this paragraph with respect to trusts for the life of the surviving spouse also apply to a legal life  estate,  to  an annuity  for the life of the surviving spouse, to an annuity trust and a unitrust as provided in  subparagraph  (K)  of  paragraph  one  of  this subdivision  or  to  any other testamentary provision by which income is payable for the life of the surviving spouse. In computing the value  of the  testamentary  provisions  the  capital  value  of the fund or other property producing the income shall be taken and not the  value  of  the life estate.  (J)  The surviving spouse is entitled to take the capital value (in no case to exceed such spouse's  elective  share)  of  the  fund  or  other property   producing   the  income  whenever  any  instrument  making  a testamentary provision of income for his life authorizes:  (i) The reduction of any  trust,  legal  life  estate  or  annuity  by invasion of the principal for another person.  (ii)  The termination of any trust, legal life estate or annuity prior to the death of the surviving spouse by payment of the principal thereof to another person.  (iii) The fiduciary to pay or apply to the use of the surviving spouse less than substantially all of the net income from any trust, legal life estate or annuity.   If an instrument  making  any  such  testamentary  provision  contains grants  of  authority  to  a  fiduciary  other  than  the foregoing, the surrogate's court having jurisdiction of the decedent's estate  may,  in its  discretion, in an appropriate proceeding by the surviving spouse or upon an accounting,  direct  and  enforce  for  the  protection  of  the surviving  spouse  an equitable distribution, allocation or valuation of the  assets,  enjoin  any  fiduciary,  whether  appointed  by  will   or otherwise,  from  exercising  any  power,  statutory or otherwise, which would be prejudicial to the interests of the surviving  spouse,  enforce the  liability  of  a  fiduciary  under  the  law  and  make  such other directions,  consistent  with  the  provisions  and  purposes  of   this paragraph,  as  it  may  consider  necessary  for  the protection of the surviving spouse.  (K) If any testamentary provision for the  surviving  spouse  provides that  such  spouse  shall  receive,  for  life  and  not less often than annually, from a charitable  remainder  annuity  trust,  as  defined  in paragraph  one  of  subdivision (d) of section six hundred sixty-four of the United States Internal Revenue Code, a sum  certain  (which  is  not less  than  five  percent  of  the  initial net fair market value of all property placed in such trust) or from a charitable remainder  unitrust, as  defined  in  paragraph two of subdivision (d) of section six hundred sixty-four of such code, a fixed percentage (which is not less than five percent) of the net fair market value of its  assets,  valued  annually, such  testamentary  provisions  shall  satisfy  the  provisions  of this paragraph with respect to trusts with income payable  to  the  surviving spouse for life.  (2)  Where,  after  August thirty-first, nineteen hundred sixty-six, a person dies intestate as to all or any part of his estate, and,  in  the case of part intestacy, executes a will after such date, and is survived by  a  spouse,  a  personal  right of election is given to the surviving spouse to take a share  of  the  testamentary  provisions  made  by  the decedent,  as  such  provisions  are  defined  in  subparagraph (1) (C), subject to the following:  (A) The share of the testamentary provisions to  which  the  surviving spouse  is  entitled  hereunder  is  his  elective  share, as defined in subparagraphs (1) (A) and (B), reduced  by  the  capital  value  of  all property  passing  to  such spouse (i) in intestacy under 4-1.1, (ii) by testamentary  substitute  as described in subparagraph (b) (1) and (iii) by disposition under the decedent's last will.  (B) The satisfaction of such  elective  share  shall  not  reduce  the intestate share of any other distributee of the decedent.  (C)  Whenever  a testamentary provision for the surviving spouse takes the form of income payable for his life:  (i) The surviving spouse has the  limited  right  to  elect  to  take, absolutely,  the sum of ten thousand dollars or the share to which he is entitled hereunder, whichever is less. Such sum, however,  is  inclusive of any absolute testamentary provision, as described in subparagraph (1) (C),  and  any  amount  to  which  the  surviving  spouse is entitled in intestacy under 4-1.1, and is payable from the principal of  any  trust, legal life estate or annuity created by such testamentary provision, the terms of which remain otherwise effective.  (ii) The provisions of subparagraph (1) (J) apply.  (d) 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.  (2)  Whenever a will creates a trust, legal life estate or annuity for the benefit of the surviving spouse for life, and  such  will  commands, directs,  authorizes  or permits the fiduciary to allocate, apportion or charge receipts or expenses to principal or income  in  such  manner  as will  or might deprive the spouse of income as defined in section 11-2.1 of this act or in any other law applicable to  such  trust,  legal  life estate  or  annuity, and where such trust, legal life estate or annuity, but for such will provision would satisfy  the  elective  share  of  the spouse  in  whole  or in part, such command, direction, authorization or permission shall not of itself give the  surviving  spouse  an  absolute right   to  take  his  elective  share.  The  surrogate's  court  having jurisdiction  of  the  decedent's  estate  may,   in   any   appropriate proceeding,  direct  and  enforce  for  the  protection of the surviving spouse an allocation,  apportionment  or  charge  of  all  receipts  and expenses  in accordance with applicable legal or equitable principles so as to assure such surviving spouse of all or substantially  all  of  the income  of  such trust, legal life estate or annuity consistent with the purposes and provisions of this section.    The  court  may  enjoin  any fiduciary  from  exercising  any power; authority or permission or doing any act which would be prejudicial to the rights and interests  of  such surviving  spouse  under  this  section.    The  court  may  enforce the liability of a  fiduciary  under  the  law  and  make  such  directions, consistent  with  the purposes and provisions of this section, as it may consider necessary for the protection of the surviving spouse.  (3) 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   (including  the  recipients  of  any  such  testamentary provision), other than the surviving spouse, under:  (A) In the case of an election under  paragraph  (a),  the  decedent's will.  (B)  In  the  case  of an election under paragraph (c), the decedent's will and other instruments making testamentary provisions.  (4) 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  surrogate  having  jurisdiction  of  the  decedent's estate.  (B)  The committee of an incompetent spouse, when so authorized by the supreme court.  (C) The conservator of conservatee spouse, when so authorized  by  the supreme court.  (5)  Any  question  arising  as  to  the  right  of  election shall be determined  by  the  surrogate's  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.  (6) Upon application by a surviving spouse who has  made  an  election under  this  section,  the  surrogate  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.  (7) 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 elects, under paragraph (h) of 3-5.1, to have the disposition of his property situated in this state governed  by the laws of this state.  (8)  The decedent's estate shall include all property of the decedent, wherever situated.  (9) 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.  (e) 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. 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.  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  its 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  a  spouse  defaults in filing such election within six months from the date of issuance of such letters, 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 letters.    An application  for  relief  from a 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 discretion, permit an election to be made in behalf  of  an  infant  or  incompetent spouse at any time up to, but not later than, the entry of the decree of the  first  judicial  account  of  the  permanent  representative of the estate, made more than seven months after the issuance of letters.  (f) 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 terms, whether:  (A) Executed before or after the marriage of the spouses.  (B)  Executed  before,  on  or after September first, nineteen hundred sixty-six.  (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.