New York Probate Lawyer Blog
The settlement of a New York estate occurs in a number of different contexts. If a Decedent dies and leaves a Last Will and Testament then the probate process begins to have the Will admitted to probate. A petition for probate is filed with the Surrogate’s Court along with the necessary supporting papers. In the event a Decedent dies intestate without a Will, then an Administration proceeding must be commenced to obtain the appointment of an Administrator and the issuance of Letters of Administration.
In all of the above situations, if a Decedent is survived by a spouse, an immediate question arises as to the nature and value of the interest which is to be distributed to a surviving spouse. In the case of a Will, the document must be examined to see what provisions have been made for the spouse. Where there is an intestacy, Estates, Powers & Trusts Law (EPTL) section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides that a surviving spouse is entitled to receive the first $50,000.00 plus one-half of the balance of the estate.
The determination of spousal rights gets very complicated by the fact that pursuant to EPTL 5-1. 1A entitled “Right of election by surviving spouse” a surviving spouse is guaranteed to receive at least one-third (1/3) of a Decedent’s net estate. To complicate matters even more, the calculation of the spousal right of election includes assets which are called Testamentary Substitutes. These assets include items such as joint assets and assets which pass outside of the probate and administration estates to third party beneficiaries. As can be imagined, the determination of all of these assets and the calculation of the overall spousal share can be filled with complexity. For example, it may be that the provisions for a spouse under a Will are less than what a spouse would receive by asserting her claim to a spousal election. In such a case the election can be used to increase the amount of assets to be received by the spouse.
In order to assert the election rights, the procedure established by EPTL 5-1.1A must be followed. The election must be made within six (6) months from the date after the Court grants Letters Testamentary or Letters of Administration. The statute also requires that in no event can the election be made later than two (2) years after a Decedent’s date of death. Also, the Notice of Right Election needs to be served on the Administrator or person nominated as Executor.
These requirements may be problematic. Very often the appointment of an Administrator or finding a Last Will may be delayed. Additionally, in many estates it may not be possible at the outset to locate or value all of a Decedent’s assets or Testamentary Substitutes. The time limits for electing a spousal share are strictly adhered to. However, in certain cases, the Surrogate’s Court can grant an extension for the filing.
As can be seen, dealing with spousal rights and protecting a spouse’s estate interests can be very complicated. Particular attention must be paid to the statutory time limits. I have represented spouses and estate fiduciaries in spousal election cases for over 40 years. Estate fiduciaries are often faced with spousal claims and are required to prepare accountings and make dispositions to the spouse for an elective share.
Call me now if you have a question regarding spousal estate rights or other estate or guardianship issue. We provide a free confidential review and reasonable and flexible fee arrangements along with personal representation.
New York Trusts and Estate 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 Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.