A surviving spouse in New York cannot be disinherited by a will alone. Under EPTL § 5-1.1-A, the spouse of a decedent who died on or after September 1, 1992 has a personal right to take an elective share of the estate, even if the will leaves the spouse nothing. The right has strict limits: a fixed formula, a short filing window, specific rules about non-probate assets, and two ways it can be lost — a valid written waiver or disqualification under EPTL § 5-1.2.
What is the elective share in New York?
The elective share is the greater of $50,000 or one third of the net estate. If the net estate is worth less than $50,000, the spouse's share is the entire net estate. The statute states the formula directly:
"The elective share, as used in this paragraph, is the pecuniary amount equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate."
— New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A(a)(2)Note that the share is a pecuniary amount — a dollar figure — not a one-third interest in each asset.
How is the "net estate" calculated?
Debts, administration expenses and reasonable funeral expenses are deducted, but estate taxes are disregarded. EPTL § 5-1.1-A(a)(2) adds one qualification: the spouse still contributes the share of estate taxes apportioned against him or her under EPTL § 2-1.8.
A simple example: the decedent leaves probate assets and countable non-probate assets that total $1,050,000, with $150,000 of debts and expenses. The net estate is $900,000, and one third is $300,000. Because $300,000 exceeds $50,000, the elective share is $300,000.
Does what the spouse already receives count against the share?
Yes. The amount the spouse can actually collect — the "net elective share" — is the elective share reduced by the value of anything that passes absolutely to the spouse by intestacy, by testamentary substitute, or under the will. Property the spouse renounced is subtracted too. In the example above, if the will leaves the spouse a $100,000 outright bequest, the spouse can elect to collect the remaining $200,000.
Interests that pass "other than absolutely" are treated differently. Under EPTL § 5-1.1-A(a)(4)(B), an interest in a trust created by the decedent, or anything less than the decedent's entire interest in a property, does not pass absolutely. Unless the decedent provided otherwise, a spouse who elects is treated as having died just before the decedent with respect to those interests — so an election cuts off a trust interest the decedent created for the spouse.
Which assets outside the will count toward the elective share?
EPTL § 5-1.1-A(b)(1) lists "testamentary substitutes" — transfers outside probate that are pulled back into the net estate for election purposes. This is the provision that keeps a spouse from being cut out through joint accounts, trusts or beneficiary designations. The listed categories are:
- Gifts causa mortis — gifts made in contemplation of imminent death.
- Transfers within one year of death made without adequate and full consideration, except amounts excludible from taxable gifts under Internal Revenue Code § 2503(b) and (e).
- Totten trust accounts — savings accounts in the decedent's name in trust for another person.
- Joint bank accounts payable to the survivor.
- Jointly owned property held with right of survivorship or as tenants by the entirety, and property payable on death to someone other than the decedent's estate.
- Retained-interest and revocable transfers, including a revocable living trust, where the decedent kept the income, possession or a power to revoke or invade principal.
- Retirement and pension benefits — limited to fifty percent of their value for plans covered by Internal Revenue Code § 401(a)(11) and certain defined contribution plans.
- Property subject to a presently exercisable general power of appointment held by the decedent.
- Securities transferred on death to a beneficiary under part 4 of EPTL article 13.
Two exceptions matter often in practice. First, a retirement plan is not a testamentary substitute if the decedent named the beneficiary on or before September 1, 1992 and never changed that designation. Second, an irrevocable transfer (other than a retirement plan) counts only if it was made after the date of the marriage.
If you are weighing a revocable trust as a way to avoid probate, keep in mind that it does not avoid the elective share. We explain the broader differences in our article on living trusts versus wills in New York.
How are joint accounts with someone else counted?
Joint bank accounts and jointly held property count only in proportion to the decedent's contribution. EPTL § 5-1.1-A(b)(2) puts the burden on the surviving spouse to prove that proportion. Where the surviving spouse is the other joint owner, the decedent's contribution is conclusively presumed to be one-half.
What is the deadline to file a right of election in New York?
The election must be made within six months after letters testamentary or letters of administration are issued, and in no event later than two years after the date of death. The statute reads:
"An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent's death, except as otherwise provided in subparagraph 2 of this paragraph."
— New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A(d)(1)The procedure has two steps under EPTL § 5-1.1-A(d)(1):
- Serve written notice of the election on the personal representative — or, if the will has not yet been admitted to probate, on the person named as executor in a will on file in the Surrogate's Court. Service may be made by mail to the address in the executor's designation under SCPA § 708.
- File the original notice, with proof of service, in the Surrogate's Court that issued letters — for a Manhattan estate, the New York County Surrogate's Court — within the same time limit.
Because the clock usually starts when letters issue, a spouse should track the probate filing closely. Our guide to letters testamentary in Manhattan Surrogate's Court explains when that happens.
Can the deadline be extended?
Yes, but only by court order. Under EPTL § 5-1.1-A(d)(2), the Surrogate's Court may extend the time before it expires, for up to six months on any one application. A spouse who missed the deadline may petition for relief from default, showing reasonable cause, if no decree settling the personal representative's account has been made, twelve months have not passed since letters issued, and two years have not passed since death. The court may, for good cause, extend the time beyond two years. Outside these provisions, subparagraph (d)(3) says the time limit "is exclusive and shall not be suspended or otherwise affected by any provision of law."
Can a prenup or postnup waive the right of election?
Yes. A spouse may waive or release the right of election during the other spouse's lifetime, against a particular will, any will, or a testamentary substitute. A waiver of all rights in the other spouse's estate also waives the right of election. The formal requirements are short:
"To be effective under this section, a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property."
— New York Estates, Powers and Trusts Law (EPTL) § 5-1.1-A(e)(2)Put plainly, signing is not enough: the waiver must also be acknowledged or proved to the standard New York requires for recording a deed. An unsigned draft does not meet the statute.
Under EPTL § 5-1.1-A(e)(3), a waiver that meets these formalities is effective whether it was signed before or after the marriage, signed by one spouse or both, with or without consideration, and whether it is absolute or conditional. That covers both prenuptial and postnuptial agreements. Separately, a spouse's written consent to waive survivor benefits under a retirement plan, given under Internal Revenue Code § 401(a)(11) or § 417, is treated as a waiver of the election against that plan benefit.
When an executor believes a waiver bars the election, the dispute goes to the Surrogate's Court. Under EPTL § 5-1.1-A(c)(4), any question about the right of election is decided by the court with jurisdiction over the estate, either in a proceeding brought for that purpose or in the judicial settlement of the personal representative's accounts. We discuss that second route in our article on accounting proceedings for New York fiduciaries.
When is a spouse disqualified under EPTL § 5-1.2?
A spouse loses the right of election if one of six grounds in EPTL § 5-1.2 is "established satisfactorily to the court" handling the matter. The grounds are:
- A final decree of divorce, annulment, or dissolution, recognized as valid in New York, was in effect when the decedent died.
- The marriage was void as incestuous, bigamous, or a prohibited remarriage under Domestic Relations Law §§ 5, 6 or 8.
- The spouse obtained an out-of-state divorce or annulment that New York does not recognize as valid.
- A final judgment of separation, recognized as valid in New York, was rendered against the surviving spouse and was in effect at death.
- The spouse abandoned the decedent, and the abandonment continued until death.
- The spouse had a duty to support the decedent and the means to do so but failed or refused, unless that support was resumed and continued until death.
"The spouse abandoned the deceased spouse, and such abandonment continued until the time of death."
— New York Estates, Powers and Trusts Law (EPTL) § 5-1.2(a)(5)Abandonment and failure-to-support claims turn on the facts of the marriage and are decided by the Surrogate's Court. They can run alongside other disputes over the will itself; see our guide to contesting a will in New York.
Other rules that affect an election
- Domicile. Under EPTL § 5-1.1-A(c)(6), the right is not available to the spouse of a decedent who was not domiciled in New York at death, unless the decedent elected under EPTL § 3-5.1(h) to have New York law govern property located here.
- Who may elect. The right is personal to the spouse. A guardian, committee, conservator, guardian ad litem or Article 81 guardian may elect for the spouse only with court authorization, per EPTL § 5-1.1-A(c)(3).
- Who pays. Unless the will says otherwise, the other beneficiaries and distributees contribute ratably, in cash or in property, under EPTL § 5-1.1-A(c)(2).
Talk to us about a right of election
Whether you are a surviving spouse with six months to act or an executor who has just received a notice of election, the numbers and the deadline matter. Estate Law New York, led by Managing Attorney Alan Vaitzman, Esq., at 17th Floor, 299 Broadway, New York, NY 10007, reviews the will, the non-probate assets and any prenuptial or postnuptial agreement to determine what the elective share is and whether it can be claimed. Schedule a free consultation.
Frequently Asked Questions
Can my spouse leave me nothing in their will in New York?
A will alone cannot cut out a surviving spouse. Under EPTL § 5-1.1-A, the spouse may elect to take the greater of $50,000 or one third of the net estate, unless the spouse signed a valid waiver or is disqualified under EPTL § 5-1.2.
How long do I have to file a right of election in New York?
The election must be made within six months after letters testamentary or of administration are issued, and no later than two years after the date of death. The Surrogate's Court can extend or excuse the deadline only on the conditions in EPTL § 5-1.1-A(d)(2).
Does a living trust count toward the spousal elective share?
Yes. A transfer where the decedent kept a power to revoke or a right to the income is a testamentary substitute under EPTL § 5-1.1-A(b)(1)(F), so its value is added to the net estate for the election.
Is a 401(k) or pension included in the elective share?
Retirement and pension benefits are testamentary substitutes, but for plans covered by Internal Revenue Code § 401(a)(11) and certain defined contribution plans only fifty percent of the value counts. A plan does not count at all if the beneficiary was designated on or before September 1, 1992 and never changed.
Does a prenup waive the right of election in New York?
It can, if the waiver is in writing, signed by the spouse giving up the right, and acknowledged or proved in the manner required to record a deed in New York. Under EPTL § 5-1.1-A(e)(3), a waiver signed before or after the marriage is effective on its terms.
Can a separated spouse still claim an elective share?
Separation alone does not disqualify a spouse. Under EPTL § 5-1.2, a spouse is disqualified by a final judgment of separation rendered against that spouse and in effect at death, or by abandonment or failure to support that continued until death, among other grounds.
Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.