It Is Important to File a Spousal Right of Election on Time

Inheritance rights in New York are mainly found in Estates, Powers and Trusts Law (EPTL) Section 4-1.1 entitled “Descent and distribution of a decedent’s estate.” This section provides the priority of persons who have rights of next of kin to receive a share of a decedent’s estate when there is no Last Will and Testament. As can be expected, a surviving spouse and children have the primary rights when there is an intestate estate.

Estate Attorneys in New York are aware that there are additional estate laws that provide family rights. One of the statutes is EPTL 5-1.1-A entitled “Right of election by surviving spouse.” Pursuant to this provision, a spouse who survives a decedent can make an election to receive a one-third share of a decedent’s estate even if the survivor was entirely left out of a Last Will. Essentially, this statute prevents the living spouse from being completely disinherited. In contrast, a person has a right to totally disinherit children or any other relative or friend. Only spouses receive protection under the New York estate laws. The New York Probate Lawyer Blog has discussed spousal and other family kinship and inheritance issues in earlier posts.

In order to secure spousal rights under EPTL 5-1.1-A, a person must file a notice of election within six months after the date of issue of letters testamentary or letters of administration but no later than two years after the decedent dies. The statute provides for service of the notice on an estate fiduciary and for filing in the Surrogate’s Court. The Surrogate does have the discretion to extend the time for reasonable cause. However, the statutory time periods are typically strictly adhered to.

In a recent Manhattan Estate case entitled Matter of the Estate of Penick, Manhattan Surrogate Rita Mella declined to exercise her discretion to expand the time period past two years. Penick was decided on October 23, 2019. The Court found that the surviving spouse was aware of the time period to elect and did not provide the Court with any good cause to account for the failure to timely file the spousal election.

Dealing with various probate and intestate issues in Surrogate’s Court can be complicated. The assistance of an experienced Trust and Estates Counsel can be essential. If you have a problem or question concerning an estate or a Will call me now for a free review. We provide reasonable and flexible fee arrangements and personal representation.

New York Guardianship and Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to Guardianship, probate and estate settlement throughout New York City including Queens County, Brooklyn and Manhattan. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.


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