New York Probate Lawyer Blog
Why Domicile Can Determine Whether a Surviving Spouse Inherits
After the death of a spouse, many people assume that a surviving husband or wife automatically inherits a portion of the estate. However, under New York law, a surviving spouse’s inheritance rights can depend on several factors, including where the decedent was legally domiciled at the time of death.
Inheriting an estate in New York can be very confusing. The rights of beneficiaries depend upon many different factors. For example, if a decedent dies and leaves a Last Will and Testament, the initial beneficiaries may appear to be the persons who are designated in the Will. However, there may be complicating factors. A Will may name as a beneficiary the Trustee of a revocable or irrevocable inter–vivos trust which was created outside of the Will. Thus, the ultimate beneficiaries would be the persons named as beneficiaries in the Trust document.
Also, when a Last Will is filed with the Surrogate’s Court to be probated, the probate proceeding includes all of a decedent’s distributees (next of kin), some of whom may not be named as beneficiaries. These individuals are potential estate beneficiaries since they have a right to contest a Will, which if successful, would result in them receiving an intestate share of an estate.
As a New York probate attorney with over 40 years of experience, I have represented Executors, Administrators, beneficiaries, and surviving spouses in complex estate matters. One issue that frequently surprises families is that a surviving spouse’s Right of Election may depend on which state’s law applies.
What Is a Spousal Right of Election in New York?
Quick Answer
A Spousal Right of Election allows a surviving spouse to receive a statutory share of a deceased spouse’s estate when the amount left to the spouse under a Will—or through intestacy—is less than the minimum amount provided by New York law.
The New York Right of Election is governed by Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, entitled “Right of Election by Surviving Spouse.”
Who Can Inherit an Estate in New York?
Inheriting an estate in New York can be very confusing. The rights of beneficiaries depend upon many different factors.
For example, if a decedent dies leaving a Last Will and Testament, the initial beneficiaries may appear to be the individuals named in the Will. However, there may be additional factors affecting who ultimately receives estate assets.
Examples include:
- A Will naming the Trustee of a revocable or irrevocable trust as beneficiary.
- A Trust that determines the ultimate beneficiaries rather than the Will itself.
- Distributees (next of kin) who are not named in the Will but have standing to contest it.
If a Will contest is successful, these distributees may instead inherit under New York’s intestacy laws.
When Must a Surviving Spouse File a Right of Election?
New York law requires that a surviving spouse file a Notice of Election within:
- Six (6) months after the issuance of Letters Testamentary or Letters of Administration, and
- Generally no later than two (2) years after the decedent’s death unless good cause exists for an extension.
Because these deadlines are strictly enforced, surviving spouses should act promptly to protect their inheritance rights.
Why Does Domicile Matter?
One of the most important aspects of a Right of Election is determining the decedent’s domicile.
Quick Answer
A person’s domicile is the place where they maintain their primary and permanent home.
The New York Right of Election generally applies only when the decedent was domiciled in New York, unless the decedent directed in a Will or other governing document that another state’s law should apply.
Because the Right of Election is governed by state law—not federal law—the applicable state’s statutes and filing requirements control whether a surviving spouse may successfully exercise these rights.
New York Estate Case: Matter of DiPrima
A recent Monroe County Surrogate’s Court decision, Matter of DiPrima, decided by Surrogate Christopher S. Ciaccio on June 23, 2026, illustrates why domicile is so important.
In DiPrima:
- The decedent was domiciled in Florida.
- The Last Will and Testament was prepared and executed in Florida.
- The Will specifically stated that Florida law governed its interpretation and validity.
- The decedent nevertheless owned real property in Monroe County, New York.
- As a result, the Will was admitted to probate in Monroe County Surrogate’s Court.
The surviving spouse, acting through an agent under a Power of Attorney, filed a Notice of Election under New York’s Right of Election statute.
What Did the Court Decide?
After reviewing both New York and Florida law, the Court concluded that:
- Florida law—not New York law—controlled the surviving spouse’s election rights.
- The procedural requirements under Florida law had not been satisfied.
- The Notice of Election was therefore ineffective.
- The surviving spouse’s Right of Election was extinguished.
Why This Case Matters
Matter of DiPrima demonstrates that protecting beneficiary rights and surviving spouse rights can be far more complicated than many families expect.
Questions involving:
- Domicile
- Probate jurisdiction
- Choice of law
- Trusts
- Wills
- Spousal election rights
can dramatically affect who ultimately inherits an estate.
For this reason, it is essential to determine which state’s law governs before attempting to exercise a surviving spouse’s Right of Election.
Frequently Asked Questions
Does a surviving spouse automatically inherit in New York?
Not necessarily. A surviving spouse may have a statutory Right of Election, but eligibility depends on the circumstances of the estate and the applicable law.
What is domicile?
Domicile is the place where a person maintains their primary and permanent home. It often determines which state’s inheritance laws apply.
Can another state’s law apply to a New York probate estate?
Yes. As illustrated in Matter of DiPrima, another state’s law may govern inheritance rights if the decedent was domiciled outside New York or directed that another state’s law control.
How long does a surviving spouse have to file a Right of Election?
Generally, a Notice of Election must be filed within six months after the issuance of Letters Testamentary or Letters of Administration, and ordinarily no later than two years after the decedent’s death unless the Court grants an extension for good cause.
Do You Have Questions About a Spousal Right of Election?
I have represented estate beneficiaries, Executors, and Administrators for over 40 years.
Do you have a question regarding an estate, trust, probate proceeding, or a surviving spouse’s Right of Election?
Call me now for a free confidential review of your issue.
We provide reasonable and flexible fee arrangements and personal representation.
Contact New York Probate and Estate Attorney Jules Martin Haas
New York Trusts and Estates Attorney Jules Martin Haas has helped clients throughout New York for more than 40 years resolve legal issues involving:
- Probate
- Estate Administration
- Estate Litigation
- Spousal Right of Election
- Guardianship
- Trust and Estate Settlement
We proudly serve clients throughout:
- Manhattan
- Brooklyn
- Queens
- Bronx
- Westchester
- Nassau County
- Suffolk County
Call (212) 355-2575 today for a free initial consultation.