2023 New York Laws › EPT - Estates, Powers and Trusts › Article 5 - Family Rights › Part 1 - Rights of Surviving Spouse › 5-1.1-A - Right of Election by Surviving Spouse

§ 5-1.1-A Right of election by surviving spouse
(a)  Where  a  decedent  dies  on  or  after September first, nineteen
hundred ninety-two 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:
(1) For the purpose of this section, the  decedent's  estate  includes
the capital value, as of the decedent's death, of any property described
in subparagraph (b) (1).
(2)  The  elective  share, as used in this paragraph, is the pecuniary
amount equal to the greater of (i) fifty thousand  dollars  or,  if  the
capital  value  of  the  net estate is less than fifty thousand dollars,
such capital value, or (ii) one third of the net  estate.  In  computing
the  net  estate,  debts, administration expenses 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  or
her under 2-1.8.
(3)  The  term  "testamentary  provision",  as used in this paragraph,
includes, in addition to  dispositions  made  by  the  decedent's  will,
distributions   of  property  pursuant  to  4-1.1  and  any  transaction
described as a testamentary substitute in subparagraph (b) (1).
(4) The share of the testamentary provisions to  which  the  surviving
spouse  is  entitled  hereunder (the "net elective share") is his or her
elective share, as defined in subparagraphs (1) and (2), reduced by  the
capital  value of any interest which passes absolutely from the decedent
to such spouse, or which would have passed absolutely from the  decedent
to  such  spouse but was renounced by the spouse, (i) by intestacy, (ii)
by testamentary substitute as described  in  subparagraph  (b)  (1),  or
(iii) by disposition under the decedent's last will.
(A)  Unless  the  decedent  has provided otherwise, if a spouse elects
under this section, such  election  shall  have  the  same  effect  with
respect to any interest which passes or would have passed to the spouse,
other  than  absolutely,  as though the spouse died on the same date but
immediately before the death of the decedent.
(B) For the purposes of this subparagraph  (4),  (i)  an  interest  in
property shall be deemed to pass other than absolutely from the decedent
to  the  spouse  if  the  interest  so passing consists of less than the
decedent's entire interest in that property or consists of any  interest
in  a  trust  or  trust  equivalent created by the decedent; and (ii) an
interest in property  shall  be  deemed  to  pass  absolutely  from  the
decedent  to  the  spouse  if  it  is  not  deemed  to  pass  other than
absolutely.
(5) Where a decedent dies before  September  first,  nineteen  hundred
ninety-four,  paragraphs  (c)(1)(D)  through  (c)(1)(K) of section 5-1.1
shall apply except that the words  "fifty  thousand  dollars"  shall  be
substituted for the words "ten thousand dollars" wherever they appear in
such paragraphs.
(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
ninety-two and is survived by a spouse who exercises a right of election
under paragraph (a), the transactions affected by and property interests
of the decedent described in clauses (A) through (H), 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,  shall  be  included in the net estate subject to the
surviving  spouse's  elective  right  except  to  the  extent  that  the
surviving  spouse has executed a waiver of release pursuant to paragraph

(e) with respect thereto. Notwithstanding the foregoing, a  transaction,
other than a transaction described in clause (G), that is irrevocable or
is  revocable  only  with  the  consent of a person having a substantial
adverse  interest (including any such transactions with respect to which
the decedent retained a special  power  of  appointment  as  defined  in
10-3.2),  will  constitute  a  testamentary  substitute  only  if  it is
effected after the date of the marriage.
(A) Gifts causa mortis.
(B) The aggregate  transfers  of  property  (including  the  transfer,
release  or  relinquishment of any property interest which, but for such
transfer, release or relinquishment, would  come  within  the  scope  of
clause  (F)),  other than gifts causa mortis and transfers coming within
the scope of clauses (G) and (H), to or for the benefit of  any  person,
made  after August thirty-first, nineteen hundred ninety-two, and within
one year of the death of the decedent, to the extent that  the  decedent
did  not  receive  adequate  and  full consideration in money or money's
worth for such transfers; provided, however, that  any  portion  of  any
such  transfer  that  was  excludible  from  taxable  gifts  pursuant to
subsections (b) and (e) of section two thousand five  hundred  three  of
the  United States Internal Revenue Code, including any amounts excluded
as a result of the election by the surviving spouse to  treat  any  such
transfer  as  having  been  made  one  half  by him or her, shall not be
treated as a testamentary substitute.
(C) Money deposited, together with all dividends or interest  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.
(D)  Money  deposited  after  August  thirty-first,  nineteen  hundred
sixty-six, together with all dividends or interest 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.
(E) Any disposition of property made by the decedent whereby property,
at the date of his or her death, is held (i) by the decedent and another
person  as  joint  tenants with a right of survivorship or as tenants by
the entirety where the disposition was made after  August  thirty-first,
nineteen  hundred  sixty-six,  or (ii) by the decedent and is payable on
his or her death to a person other than  the  decedent  or  his  or  her
estate.
(F) Any disposition of property or contractual arrangement made by the
decedent,  in  trust  or  otherwise, to the extent that the decedent (i)
after August thirty-first, nineteen hundred ninety-two, retained for his
or her life or for any period not ascertainable without reference to his
or her death or for any period which does not in fact end before his  or
her  death  the possession or enjoyment of, or the right to income from,
the property except to the extent that such disposition  or  contractual
arrangement was for an adequate consideration in money or money's worth;
or  (ii)  at  the  date  of his or her death retained either alone or in
conjunction with any other  person  who  does  not  have  a  substantial
adverse interest, 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  subparagraph
shall  not  affect  the  right  of  any income beneficiary to the income

undistributed or accrued at the date of death nor shall they  impair  or
defeat  any  right  which  has  vested on or before August thirty-first,
nineteen hundred ninety-two.
(G)  Any  money,  securities or other property payable under a thrift,
savings, retirement,  pension,  deferred  compensation,  death  benefit,
stock  bonus  or  profit-sharing  plan,  account, arrangement, system or
trust, except that with respect to a plan to which subsection  (a)  (11)
of  section  four hundred one of the United States Internal Revenue Code
applies or a defined contribution plan to which such subsection does not
apply pursuant to paragraph (B) (iii) thereof, only  to  the  extent  of
fifty   percent  of  the  capital  value  thereof.  Notwithstanding  the
foregoing,  a  transaction  described  herein  shall  not  constitute  a
testamentary  substitute  if  the decedent designated the beneficiary or
beneficiaries of  the  plan  benefits  on  or  before  September  first,
nineteen   hundred  ninety-two  and  did  not  change  such  beneficiary
designation thereafter.
(H) Any interest  in  property  to  the  extent  the  passing  of  the
principal  thereof  to or for the benefit of any person was subject to a
presently exercisable  general  power  of  appointment,  as  defined  in
section  two  thousand  forty-one  of the United States Internal Revenue
Code, held by the decedent immediately before his or her death or  which
the  decedent,  within one year of his or her death, released (except to
the extent such release results from a lapse of the power which  is  not
treated  as  a release pursuant to section two thousand forty-one of the
United States Internal Revenue Code) or exercised in favor of any person
other than himself or herself or his or her estate.
(I) A transfer of a security to a beneficiary pursuant to  part  4  of
article 13 of this chapter.
(2)  Transactions  described in clause (D) or (E) (i) 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 described in clause (E) (i) was furnished
by  the  decedent.  The  surviving  spouse  shall  have  the  burden  of
establishing  the  proportion  of the decedent's contribution; provided,
however, that where the surviving spouse  is  the  other  party  to  the
transaction, it will be conclusively presumed that the proportion of the
decedent's   contribution   is   one-half.   For  the  purpose  of  this
subparagraph, the court may accept such  evidence  as  is  relevant  and
competent,  whether  or  not  the  person  offering  such evidence would
otherwise be competent to testify.
(3) The property referred to in clause (E) shall include United States
savings bonds and other United States obligations.
(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.  A  corporation  or  other  person  paying   or
transferring   any   funds  or  property  described  in  clause  (G)  of
subparagraph one of  this  paragraph  to  a  person  otherwise  entitled
thereto,  shall  be held harmless and free from any liability for making
such payment or transfer, in any action  or  proceeding  which  involves
such  funds  or  property.  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  or  her  right of election under
paragraph (a). Service  of  a  certified  copy  of  such  order  on  the

corporation  or  other  person  holding such fund or property shall be a
defense, during the effective period of the  order,  in  any  action  or
proceeding 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) of this paragraph, this paragraph controls.
(7) If any part of this section  is  preempted  by  federal  law  with
respect  to a payment or an item of property included in the net estate,
a person who, not for value, received that payment or item  of  property
is  obligated  to return to the surviving spouse that payment or item of
property or is personally liable to the surviving spouse for the  amount
of  that  payment  or  the value of that item of property, to the extent
required under this section.
(c) 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, subject, however, to  the
provisions of clause (a)(4)(A).
(2)  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 and distributees (including the  recipients  of  any  such
testamentary  provision),  other  than  the  surviving spouse, under the
decedent's will, by intestacy and other instruments making  testamentary
provisions,  which  contribution  may be made in cash or in the specific
property received from the decedent by the person required to make  such
contribution  or  partly  in  cash  and  partly in such property as such
person in his or her discretion shall determine.
(3) 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 court having jurisdiction of the decedent's estate.
(B) The committee of an incompetent spouse, when so authorized by  the
court that appointed the committee.
(C) The conservator of a conservatee spouse, when so authorized by the
court that appointed the conservator.
(D)  The guardian ad litem for the surviving spouse when so authorized
by the court that appointed such guardian.
(E) A guardian authorized under Article 81 of the mental hygiene  law,
when so authorized by the court that appointed the guardian.
(4)  Any  question  arising  as  to  the  right  of  election shall be
determined by the 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.
(5)  Upon  application  by a surviving spouse who has made an election
under this  section,  the  court  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.
(6)  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  has  elected,  under  paragraph  (h)  of
3-5.1,  to  have the disposition of his or her property situated in this
state governed by the laws of this state.
(7) The decedent's estate shall include all property of  the  decedent
wherever situated.
(8)  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.
(9) The references in this paragraph to sections of the United  States
Internal  Revenue  Code  are  to  the  Internal Revenue Code of 1986, as
amended.  Such  references,  however,  shall  be  deemed  to  constitute
references to any corresponding provisions of any subsequent federal tax
code.
(d) 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, but in no event later than two years after the date  of
decedent's death, except as otherwise provided in subparagraph 2 of this
paragraph.  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 but in no event later than two
years from the date of decedent's death, except as otherwise provided in
subparagraph 2 of this paragraph. 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  section 708 of the surrogate's court
procedure act, to the domicile address of such nominated executor, or in
such other manner as the surrogate may direct.
(2) The time to make such election may be extended  before  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
the  spouse defaults in filing such election within the time provided in
subparagraph (1) of this paragraph, 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 the letters, and two years
have  not  elapsed  since  the  decedent's date of death, in the case of
initial application; except that the court may, in  its  discretion  for
good  cause  shown,  extend  the  time to make such election beyond such
period of two years. An application for relief from the 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  or her
discretion, permit an election to be made in  behalf  of  an  infant  or

incompetent  spouse  at  any time up to, but no later than, the entry of
the decree of the first judicial account of the  representative  of  the
estate, made more than seven months after the issuance of letters.
(e) 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.
(4) If there is in effect at  the  time  of  the  decedent's  death  a
waiver, or a consent to the decedent's waiver, executed by the surviving
spouse  with  respect to any survivor benefit, or right to such benefit,
under subsection (a) (11) of section four hundred one  or  section  four
hundred  seventeen of the United States Internal Revenue Code, then such
waiver shall be deemed to  be  a  waiver  within  the  meaning  of  this
paragraph  (e)  against  the  testamentary  substitute constituting such
benefit.