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A New York Right Of Election Can Be Used Regarding Pension or Death Benefits

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.

In other cases, a person may die without a Will but leave certain assets such as employee death benefits or pensions. Very often these assets have a named or designated beneficiary. If the decedent did not name a surviving spouse as the beneficiary, then the spouse can file a Right of Election with the Court and obtain a Court order for a share of the pension or death benefit to be paid to the spouse.

There are some common situations in which this problem appears. Many individuals in New York are municipal employees and work for various government agencies and departments. Local government pensions are provided by the New York City Employees Retirement System (NYCERS). When a person dies and has a pension or death benefit from NYCERS, if it is discovered that the surviving spouse is not named as a beneficiary on the benefit, then the spouse can utilize the right of election to claim a share. Since pension and death benefit rights can be very valuable, the spousal election can be a very important aspect of post-death estate settlement.

I have represented many individuals in connection with a spouse’s Right of Election. Call me now if you have a question or concerns regarding spousal rights or estate administration.  New York Probate Attorney Jules Haas has helped many clients over the past 30 years resolve issues relating to intestate estates and estate settlement. If you or someone you know is in need of assistance regarding a New York Estate matter or have any questions regarding such proceedings, please contact me at (212) 355-2575.

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