Why A Spousal Right of Election May Be Needed To Receive a NYCERS Death Benefit

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.Typically, a Notice of Election will be filed with the appropriate Surrogate’s Court. Thereafter a Court proceeding is filed with the Court in which the Court makes a determination as to the amount of the benefit that will be paid to the spouse. The spousal rights apply to most assets that are payable outside of the administration estate including payment from other retirement funds such as the local Teacher’s Fund.

There are strict guidelines regarding the preparation and timing for the filing of the Right of Election Notice. In a recent Bronx Estate case entitled Estate of Richburg-James decided by Bronx Surrogate Nelida Malave-Gonzalez on March 26, 2018, the Surrogate allowed the spouse to file and serve a late notice of intent to exercise a right of election.

I have prepared numerous Right of Election notices for clients and filed them with the Court. My office has also filed Petitions with the Surrogate’s Court to have a spousal election amount calculated and paid. If you have a question regarding a Right of Election or other Estate issues, call me now for a free review.

New York Probate Attorney Jules M. Haas has helped many clients over the past 30 years resolve issues relating to intestate estates, estate planning, kinship and estate settlement. If you or someone you know is in need of assistance regarding a Queens, Manhattan or other New York Estate matter or have any questions regarding such proceedings, please contact me at (212) 355-2575.


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