Frequently Asked Questions Regarding Spousal Rights of Election

What is a spousal right of election?

In the State of New York, a spouse has what is called a personal right of election. This entitles a spouse to receive whichever is the greater of 50% or 1/3 of the other spouse’s estate calculated as of the date of the other spouse’s death. This right of election is also known as the elective share. The surviving spouse has to exercise his or her right of election to collect under this right. If this right of election is not exercised, it is considered waived.

How long does a spouse after the date of death have to exert their right of election?

The surviving spouse must take action to assert their right of election within six months of the date that Letters of Administration or Letters Testamentary are granted appointing an executor or administrator on the estate of the deceased spouse. If no action is taken to create an estate for the deceased spouse, the six month period to exercise the right of election does not start to run.

How does one calculate what they would receive as part of the elective share or under their right of election?

First, you include all probate assets, either passing under a will or by operation of law. Then you subtract all debts and expenses in administrating the estate from this figure. What is left is subject to the spousal right of election. Estate taxes are not taken into consideration when figuring out the spousal right of election. Non-testamentary or non-probate assets, such as testamentary substitutes, are also not considered with regard to the spousal right of election.

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