An Extension to File a Spousal Right of Extension May Be Based Upon Reasonable Cause

Estate-Settlement-300x200 There are many different rights which appear in the New York Trust and Estate laws.  The basic statutes concerning estate law and procedure are contained in the Estates, Powers and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA).

A surviving spouse of a decedent benefits from a number of provisions in the estate laws.  For example, if a person dies intestate (without a Last Will and Testament), EPTL 4-1.1 entitled “Descent and distribution of a decedent’s estate,” provides that a surviving spouse is entitled to receive, essentially, one-half of a decedent’s estate if there are also surviving children.  In the event no children are surviving, then the spouse has top priority and inherits the decedent’s entire estate.

SCPA 1001 entitled “Order of priority for granting letters of administration,” is another provision where a spouse has priority benefits.  This statute provides that a spouse is to be appointed as the administrator of an intestate estate before any other heir.  The New York Probate Lawyer Blog contains many articles discussing executors and administrators and estate settlement.

EPTL 5-3.1 entitled “Exemption for benefit of family,” is another statute where a spouse may benefit and receive a minimum amount of personal property and funds from an estate.  However, perhaps the greatest protection afforded to a surviving spouse is in EPTL 5-1.1A entitled “Right of election by surviving spouse.”  This provision essentially prevents one spouse from disinheriting the other.  The statute basically provides that a surviving spouse is to receive one-third of a decedent’s net estate.  The assets included in the calculation are comprised of items that are part of an estate along with various testamentary substitutes, which are assets that pass outside of the estate such as joint assets.  An important aspect of the statute is that it contains detailed procedures which a surviving spouse must follow in order to elect to receive such estate share.  Among these procedures is the requirement that an election must be made and filed with the Court within six months after fiduciary letters are issued.  There is also a two-year filing limit from the decedent’s date of death for an election to be made.  Also, the statute allows the Court to provide an extension of the time periods in certain circumstances.

A request for an extension for the exercise of a right of election arose in a recent Queens estate case entitled Estate of Yoon, decided by Queens Surrogate Peter J. Kelly on February 28, 2023.  In Yoon, the surviving spouse filed for a right of election eight months after letters testamentary were granted.  A petition for leave to extend the time to serve and file was presented to the Court.  After reviewing the statute, the Court granted the extension.  It found that the original delay in filing for the right of election was minimal and that there would be no prejudice to allow the extension.  Under the circumstances surrounding the parties’ relationship, and also the delay by the attorneys and the Court, there was a reasonable cause for the delay.  The Surrogate’s Court further found that the fact that the spouse had received other assets from the decedent, and had also signed a waiver in the probate proceeding, did not preclude the filing of a right of election.

I have represented many clients in right of election cases, as well as other probate and intestate administration matters.  The assistance of an experienced estate lawyer may be essential to the protection of a beneficiary’s interests in an estate.  Do you have a question or problem concerning an estate?  Call me NOW for a review.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.


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