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New York Elective Share: Protecting Spousal Inheritance Rights After Death
In New York, the concept of an "elective share" provides crucial protection for surviving spouses who might otherwise be excluded from a will. This statutory right guarantees that a spouse cannot be entirely disinherited, promoting fairness and preserving familial financial stability.
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1. New York Elective Share: Legal Foundations and Purpose
The elective share concept arose to protect surviving spouses from being disinherited through strategic estate planning. It reflects public policy favoring marital protection over unrestricted testamentary freedom.
New York Elective Share: Key Statutory Provision
The governing law is found in EPTL § 5-1.1-A. It entitles a spouse to the greater of $50,000 or one-third of the net estate, which includes certain non-probate assets like joint accounts and revocable trusts.
2. New York Elective Share: What Assets Are Included
The elective share applies to probate estate and qualifying testamentary substitutes. This may include jointly titled assets, retirement accounts, payable-on-death accounts, and trusts the decedent controlled before death.
New York Elective Share: Excluded Property
Gifts made more than one year before death, irrevocable trusts created long before passing, and separate property from prenuptial agreements may fall outside the elective share.
3. New York Elective Share: Eligibility and Filing Procedure
Only legally married spouses at the time of death can assert this right. Divorced or separated individuals are not eligible. Domestic partnerships or common-law marriages are also excluded in New York.
4. New York Elective Share: Deadlines and Filing
The notice of election must be filed within six months after the estate representative is appointed, and no later than two years from the date of death. Missing this deadline can result in a forfeiture of the claim.
5. New York Elective Share: Planning Considerations and Waivers
Because the elective share overrides certain estate plans, it’s important to consider this in any will or trust strategy. Spouses cannot be fully disinherited without consequence.
New York Elective Share: Waiver Through Agreements
Spouses may waive their elective share through prenuptial or postnuptial agreements. To be valid, the waiver must be in writing, voluntary, and with full financial disclosure.
6. Conclusion: Navigating the New York Elective Share Framework
Understanding elective share laws is essential for both surviving spouses and those planning their estates. Legal counsel is key to avoiding disputes and protecting intended distributions.
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.
