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New York Elective Share Claim
Spousal Inheritance Rights
In New York, a surviving spouse may assert a legal right to a portion of a deceased spouse's estate—even if disinherited. This right, known as the "elective share," provides a financial safeguard to surviving spouses and serves as a limitation on testamentary freedom.
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1. New York Elective Share Claim: Who Can File
Only the legal surviving spouse can file an elective share claim. This right does not extend to ex-spouses, unmarried partners, or common-law spouses, regardless of the relationship's duration or emotional bond.
New York Elective Share Claim: Spousal Rights vs. Will
Even if the decedent's will leaves nothing to the spouse, the law allows them to override the will by electing their share. This prevents total disinheritance.
2. New York Elective Share Claim: What Is the Elective Share Amount
The elective share in New York is **the greater of $50,000 or one-third of the net estate**, which includes probate assets and certain non-probate transfers such as joint accounts or payable-on-death assets.
New York Elective Share Claim: Calculating the Estate</h3> When calculating the net estate, courts consider:
- Assets that pass through probate
- Assets transferred within one year before death without fair consideration
- Property held jointly with right of survivorship
3. New York Elective Share Claim: Time Limit and Procedure
A surviving spouse must file a notice of election within six months from the issuance of letters testamentary or administration, but not later than two years after the decedent's death.
New York Elective Share Claim: Filing Process
The spouse must:
- File a written notice of election with the Surrogate’s Court
- Serve notice on the estate representative
- File an affidavit confirming service
Failure to comply may forfeit the right.
4. New York Elective Share Claim: Disputes and Contests
Elective share claims often lead to litigation, especially when:
- The estate includes disputed non-probate transfers
- The decedent transferred assets to third parties before death
- The surviving spouse’s marital status is challenged
New York Elective Share Claim: Example Scenarios
Example 1:
A decedent leaves all assets to children from a prior marriage. The current spouse can still claim their elective share.
Example 2:
The decedent places assets in a trust to exclude the spouse. The court may include those assets in the elective share calculation.
5. New York Elective Share Claim: Waiver and Prenuptial Agreements
Spouses may waive the elective share in a **prenuptial or postnuptial agreement**, but such waivers must be:
- Voluntary
- In writing
- With full disclosure of financial information
6. New York Elective Share Claim: Conclusion
The elective share claim in New York is a powerful legal tool that protects surviving spouses from being unjustly disinherited. However, it involves strict deadlines, complex estate valuation, and possible court disputes. Early legal guidance is critical for both spouses and estate administrators.
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.
