A New York Spousal Right of Election Must Be Timely Filed

There are many different aspects to estate administration that requires consideration. The New York Probate Lawyer Blog has pointed out in earlier posts that the estate laws provide certain protections for a decedent’s spouse.

Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A entitled “Right of election by surviving spouse”, contains provisions which require that a surviving spouse receive a share of a decedent’s estate. This share is referred to as the elective share. The statute provides that the elective share is equal to the greater of $50,000.00 or one-third of the decedent’s net estate.Due to the right of election, a decedent generally cannot disinherit a spouse. Even when the decedent writes a Last Will, if the spouse is cut out of the Will, the surviving spouse can elect to take a share of the estate as provided for by the statute.

The above principal also applies even if the decedent does not have a Will but leaves assets to others as named beneficiaries under retirement plans or on bank accounts.   In the above situations, the electing spouse is required to follow the procedure in EPTL 5-1.1-A in order to file a claim.  The statute directs that the election be properly made either within 6 months after letters of administration or letters testamentary are issued but in no event later than 2 years after the decedent’s date of death.

There are many situations where Estate Litigation occurs concerning a spousal election. A New York City Estate Lawyer can be important in assisting litigants regarding this issue.  One example of a situation that may cause a dispute in Surrogate’s Court is where there is a question concerning whether the person making the election is actually the decedent’s spouse. In these matters proof would need to be presented to the Court regarding the validity of the marriage to the decedent. Other instances of concern involve whether or not the right of election was timely made or forfeited. A recent case decided by Bronx Surrogate Nelida Malave Gonzalez on February 16, 2017 entitled Estate of James involved the late filing of the right of election. In James the Court exercised its discretion and allowed the late filing by extending the time requirements under the statute. EPTL 5-1.1-A contains a provision that allows the Court to grant such an extension.

I have represented many individuals in estate administration cases and right of election matters. If you have an issue regarding a Surrogate’s Court case or probate, call me now for a free review.

New York Probate Attorney Jules  Haas has helped many clients over the past 30 years resolve issues relating to intestate estates, estate planning, kinship and estate settlement.  If you or someone you know is in need of assistance regarding a Queens, Manhattan or other New York Estate matter or have any questions regarding such proceedings, please contact me at (212) 355-2575.



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