2023 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.