What the rule says
New York provides surviving spouses with a robust right of election under New York Estates, Powers and Trusts Law § 5-1.1-A. The right allows a surviving spouse to override the deceased spouse's will and take a statutory share — the greater of $50,000 or one-third of the net estate.
Key features:
- Greater of $50,000 or one-third. The minimum is $50,000 regardless of estate size; the share rises to one-third in larger estates. For an estate with a net value of $150,000 or more, the one-third share exceeds $50,000 and applies. - Net estate definition. The net estate is the probate estate plus certain testamentary substitutes (defined below), minus debts, administration expenses, and certain other items. - Reaches testamentary substitutes. Under EPTL § 5-1.1-A(b), the right of election reaches not just probate property but also a defined list of non-probate transfers, preventing easy disinheritance through revocable trusts and similar techniques. - Strict time limits. The election must be made within six months after issuance of letters testamentary or letters of administration, or two years after the decedent's death, whichever is later. - Can be waived. A premarital or postmarital agreement can waive the right of election under EPTL § 5-1.1-A(e).
What testamentary substitutes are included
EPTL § 5-1.1-A(b) defines testamentary substitutes that count toward the elective-share calculation. The list includes:
- Gifts causa mortis (gifts made in contemplation of death) - Money in joint bank accounts (with limited exceptions) - Other accounts payable on death (POD/TOD designations) - Joint tenancies with right of survivorship - Property held in trust by the decedent (revocable trusts) - Property over which the decedent had a presently exercisable general power of appointment - Pension and retirement account benefits, in part - Certain transfers within one year of death
The inclusion of these testamentary substitutes is a major feature of New York's right of election. Without it, a spouse could disinherit the other by titling assets jointly, naming alternative beneficiaries, or placing property in a revocable trust. The statute reaches around these techniques to preserve the elective-share protection.
What is excluded
Some assets are excluded from the elective-share calculation:
- Life insurance proceeds (with limitations) - Pension benefits to the extent of certain ERISA-governed plans - Property the decedent transferred more than one year before death without retaining specified interests - Certain irrevocable trust interests, depending on structure - Property the surviving spouse has already received (which is credited against the elective share rather than excluded entirely)
The complexity of inclusions and exclusions makes elective-share calculations technical, particularly for larger estates with sophisticated planning.
How the election is made
The surviving spouse files a notice of election with the Surrogate's Court within the statutory deadline. After the election:
- The elective share is calculated. The court determines the net estate and applies the greater-of-$50,000-or-one-third formula. - Credits are applied. Amounts the spouse has already received from the decedent (under the will, by joint title, by beneficiary designation, etc.) are credited against the elective share. - The remainder is paid from the elective estate. Various assets within the elective estate are reached in a specified order to satisfy the elective share. - The will is otherwise honored. The election does not invalidate the will entirely; it adjusts what the spouse receives. The remaining estate is distributed according to the will (subject to elective-share adjustments).
The procedure is technical and benefits from professional assistance, particularly for larger or more complex estates.
Comparison to Florida and Pennsylvania elective shares
The three major elective-share frameworks have distinct features:
- Florida (30%): Higher percentage than New York's one-third for some estates. Augmented elective estate is broadly defined. - New York (greater of $50,000 or one-third): Has a minimum dollar amount that protects spouses in small estates. Testamentary substitutes are extensively included. - Pennsylvania (one-third): No minimum dollar amount but reaches probate and certain non-probate transfers.
New York's $50,000 minimum is unusual and produces meaningful protection in small estates. For a $90,000 estate, New York's $50,000 minimum exceeds Florida's 30% ($27,000) and Pennsylvania's one-third ($30,000). For estates of $150,000 or more, the one-third figure produces consistent results across the three states.
What this means in practice
For New York surviving spouses:
- The right of election typically protects against significant disinheritance. A spouse left out of the will or given less than the elective-share calculation can override the will's distribution. - The election decision is not always straightforward. Spouses already receiving more than the elective-share threshold (under the will, by joint title, etc.) gain nothing by electing. Spouses receiving less benefit by electing. - The deadline is strict. Late elections are rejected; the spouse loses the protection if not asserted timely.
For New York estate planners:
- The right of election shapes estate planning structure. Wealth-preserving techniques that would defeat the elective share — irrevocable trusts established more than one year before death, lifetime gifts that meet specific criteria — must be implemented carefully to be effective. - Premarital and postmarital agreements are common. Couples in second marriages, blended families, or with significant separate wealth often use agreements to limit the right of election. - The interaction with federal preemption matters. Some retirement plans subject to ERISA may be partially or fully exempt from the elective share due to federal preemption, even though state law would otherwise reach them.
What you can do about it
For surviving New York spouses:
1. Calculate the elective share early. Work with Surrogate's Court counsel to determine net estate, testamentary substitutes, and credits. 2. Consider whether to elect. Compare what the will provides (plus joint titles and beneficiary designations) against the elective-share calculation. 3. File the notice within the deadline. Late elections are not honored. 4. Coordinate with other rights. New York surviving spouses also have rights under the homestead exemption, exempt property, and other provisions.
For New York estate planners:
- Build the right of election into planning. Surviving spouses typically have meaningful protection regardless of will provisions; planning should account for this rather than assume the will controls. - Use premarital and postmarital agreements when appropriate. Couples in second marriages or blended families often use agreements to limit cross-spousal inheritance. - Address ERISA-governed plans separately. Federal preemption affects how the right of election reaches retirement assets.
Who this affects most
The right of election is most consequential for:
- Surviving New York spouses whose deceased spouse's will provided less than the elective-share threshold - Blended families where the deceased spouse may have wanted to direct assets to children from a prior relationship - Estates with substantial non-probate transfers that would otherwise defeat default inheritance protection - New York estate planners structuring wealth across spouses, especially in second marriages
New York's right of election is among the more spouse-protective in the country, particularly because of the $50,000 minimum that protects spouses in small estates. The combination of the minimum, the one-third share for larger estates, and the inclusion of testamentary substitutes ensures meaningful elective-share protection across estate sizes.