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New York Elective Share Calculation
Rights, Formula, and Legal Remedies
In New York, the “elective share” protects a surviving spouse from being completely disinherited. This article explains how the elective share is calculated, who is eligible, and what legal actions can be taken when this right is violated.
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1. New York Elective Share Calculation: Basic Concept
The elective share is the minimum portion of an estate that must go to the surviving spouse, even if the deceased attempted to exclude them via will or gift.
New York Elective Share Calculation: Who Is Eligible?
Only legally recognized surviving spouses may claim an elective share. Children, parents, and other heirs are not entitled to this share under New York law.
New York Elective Share Calculation: Share Percentage
The elective share equals the greater of:
1. $50,000 or 2. One-third of the net estate (including testamentary and non-testamentary transfers).
2. New York Elective Share Calculation: Valuation and Formula
The total estate includes probate and certain non-probate assets like jointly held accounts or pay-on-death designations. Debts and expenses are deducted first.
New York Elective Share Calculation: Deduction of Liabilities
Estate administration expenses, funeral costs, and outstanding debts are deducted before calculating the share.
New York Elective Share Calculation: Impact of Lifetime Gifts
Lifetime transfers made within one year before death may be pulled back into the estate for share calculation purposes if intent to evade the elective share is found.
3. New York Elective Share Calculation: Legal Remedies and Time Limits
A surviving spouse must file a notice of election within 6 months of the appointment of an estate representative, and not later than 2 years from death.
New York Elective Share Calculation: Litigation Procedure
If the elective share is denied, a civil action may be filed in the Surrogate’s Court to enforce the right.
New York Elective Share Calculation: Required Documents
Death certificate of decedent - Marriage certificate - Estate inventory and probate documents - Financial statements showing gifts or transfers
4. New York Elective Share Calculation: Common Examples
- A wife discovers her husband left all assets to his children from a previous marriage
- A husband learns his deceased spouse transferred real estate to a sibling before death
- A spouse is omitted from the will, but no prenuptial agreement exists
The information provided in this article is for general informational purposes only and does not constitute legal advice. Reading or relying on the contents of this article does not create an attorney-client relationship with our firm. For advice regarding your specific situation, please consult a qualified attorney licensed in your jurisdiction.
