Articles Posted in Right of Election

The rights of a surviving spouse have been safeguarded in various provisions of the New York Estate Law. For example, when a person dies without a Last Will his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that the intestate share of a surviving spouse takes priority even where there are surviving children. A surviving spouse receives the first $50,000.00 of the estate plus one-half of the balance.

The New York Probate Lawyer Blog has published many articles relating to the various rights that family members have when a person dies without a Last Will. The intestate administration of a decedent’s estate can be quite complicated especially when issues of kinship exist. Continue reading

There are numerous protections afforded to a surviving spouse in the New York Estate Laws. When a person dies without a Last Will, the Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that a surviving spouse is entitled to receive the sum of $50,000.00, plus one-half of the decedent’s administration estate. Additionally, it is important to know that a spouse cannot be disinherited. Even if a decedent leaves a Last Will, a spouse can file an election so as to receive at least one-third of an estate. This Right of Election applies to situations where the decedent dies with or without a Will. The New York Probate Lawyer Blog has published numerous articles concerning the Right of Election.

In many cases, a decedent may leave property to designated beneficiaries outside of the estate property. These assets may include joint bank accounts, joint real estate or retirement benefits. There are instances where the decedent had been employed by the government and there are significant death benefits. Even where these benefits are made payable to children or other third parties, the spouse through a Right of Election may be entitled to receive one-third of these benefits. One common source of benefits is from NYCERS which is the New York City Employees’ Retirement System. I have represented many individuals in connection with using a Spousal Right of Election to obtain a spousal share of these funds. Continue reading

The estate of a decedent is distributed in two basic ways. If a person dies with a Last Will and Testament, once the Will is admitted to probate, the Will provisions determine the distribution. When a person dies without a Last Will, then he is considered to have died intestate. An intestate estate is distributed to the decedent’s next of kin according to Estates, Powers and Trusts Law (EPTL) Section 4-1.1.

The New York Probate Lawyer Blog has previously reviewed statutory provisions known as a Right of Election. This law is contained in EPTL Section 5-1.1-A. A Right of Election gives a surviving spouse the right to receive a share of a decedent’s estate even if the spouse is disinherited. For example, if a decedent leaves a Last Will and makes no provision for the surviving spouse, the spouse can file a Right of Election with the Surrogate’s Court. The statute provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate. In these cases, when the Executor is ready to settle the estate, he will calculate the spouse’s Right of Election share for distribution even though there is no provision made in the Will for the spouse. Continue reading

New York Estate Attorneys are aware of the many statutes and rules regarding Wills, Estate Settlement and Surrogate’s Court procedures. The Estates, Powers and Trusts Law (“EPTL”) and the Surrogate’s Court Procedure Act (“SCPA”) embody the statutory framework regarding estates practice.

Among the many items contained in these laws are provisions regarding the rights of a decedent’s surviving spouse. As would be expected, a spouse, along with children, play prominent roles when it comes to inheritance. For example, if a person dies intestate (i.e, without a Last Will) EPTL 4-1.1 requires that a spouse receive $50,000 plus one-half of the decedent’s estate when there are also surviving issue (i.e. children). If there are no issue surviving, the spouse receives the entire estate. However, what is the outcome where the decedent does leave a Last Will but makes no provision in the Will for the spouse or for children. In New York a person may disinherit his children entirely. A spouse though may not be completely cut out from inheriting. As discussed in previous posts in the New York Probate Lawyer Blog, EPTL 5-1.1-A entitled “Right of election by surviving spouse” contains provisions that effectively give a spouse at least $50,000 or one-third of a decedent’s net estate. The statute goes on to provide a procedure to follow for an aggrieved spouse to claim this statutory minimum amount. If a spouse is completely disinherited under a Will or is not designated to receive a sum at least equal to the right of election amount, the spouse can prepare and file an Election to take this elective share rather than the lesser amount designated by a Last Will.

The statute provides very explicit procedures that must be followed to preserve and effectuate this election. EPTL 5-1.1-A(d) contains the “Procedure for exercise of right of election” and sets forth requirements which include that the election must be made within 6 months after the issuance of fiduciary letters but not later than 2 years after the death of the decedent. Also, the election must be served on the estate’s personal representative and filed with the Surrogate’s Court.

A recent case decided by Brooklyn Surrogate Diana Johnson entitled Estate of Shlomo Cyngiel illustrates the necessity to obide by the requirements of the Right of Election Statute. Cyngiel was decided on July 23, 2013 and reported in the New York Law Journal on July 30, 2013. The decedent’s spouse died over 5 years after the decedent and, as found by the Court, failed to follow the statutory procedures to timely file for the Election. The deceased spouse’s Executor applied to the Surrogate to grant an extension of the time to file on behalf of the deceased spouse. The Surrogate found that the Executor did not present a justifiable basis to allow an extension of time to allow a late filing. The Court also stated that a right of election is a personal right of a surviving spouse and must be exercised during the spouse’s lifetime. The estate of the surviving spouse was precluded from exercising the election.

The use of a Right of Election is an important aspect in both pre-death Estate Planning and post-death estate administration. Therefore, it is always a good approach to review and discuss these issues with an experienced Estate Lawyer.

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