Surviving Spouse’s Right of Election

Scales of justice

New York has a special statute which protects spouses from being disinherited. The name of this statute is called “The Right of Election”. Under this statute a spouse is entitled to a minimum “elective share” of the assets of his or her spouse. If a spouse is disinherited in a will or trust and or the spouse receives less of the decedent’s estate than he or she is entitled to, they can ask for their “elective share” under the right of election.

Elective share in New York

The right of election allows a spouse to challenge what she receives in a will. The right of election entitles the spouse to receive the greater of 50,000.00 or 1/3rd of the estate. In New York this only applies to individuals who are legally married. New York does not accept the existence of a common law marriage for estate purposes.

The request for an elective share includes both assets in the parties names and “testamentary substitutes”. Testamentary substitutes can be bank accounts, real estate and other types of assets that are designed to prevent the spouse from receiving his or her just share in an estate.

Exercising the Spousal Right of Election

When a spouse does not receive the value of $50,000.00 or one third of the estate, he or she can take action to file for their right of election against the estate. This right of election is exercised by the surviving spouse who has either been disinherited or has not inherited as much as he or she would receive in the elective share. An individual who seeks to exercise his or her elective share must take this action within six months after an executor or an administrator has been appointed to handle the estate. The six month period acts as a statute of limitations. Failure to take the appropriate action to claim one’s elective share during the six month period will bar them from claiming the elective share in the future.

The exercising of one’s rights to an elective share is not something that an individual should do on his or her own. Should you feel you have not received an adequate amount of inheritance from your spouse you should contact an estates attorney and meet with him or her to discuss your options and how to protect your interests.

NY Attorney Elliot Schlissel

Elliot S. Schlissel is an estates lawyer representing individuals in estate planning matters, will contests, accounting proceedings and all other estate related litigation issues throughout the metropolitan New York area.