Spousal Right of Election Lawyers NY

New York does not let a person disinherit a husband or wife with the stroke of a pen. Even when a will leaves a surviving spouse little or nothing, the law gives that spouse a right to claim a guaranteed share of the estate. This is the right of election, and it is a frequent flashpoint in contested estates, especially in second marriages and blended families where children from a first marriage and a later spouse find themselves on opposite sides.

What the Elective Share Is

Under EPTL 5-1.1-A, a surviving spouse may elect to take the greater of fifty thousand dollars or one-third of the net estate, instead of accepting what the will provides. Critically, the elective share is calculated against more than the probate estate alone. New York counts certain testamentary substitutes, assets that pass outside the will, such as jointly held property, certain bank accounts, and gifts made near death, so a spouse cannot be sidelined by clever asset titling.

Why It Becomes a Dispute

The right of election often pits a surviving spouse against the decedent’s children or other beneficiaries. The will may have funneled assets into joint accounts, beneficiary designations, or transfers intended to shrink what the spouse can reach. Determining the true size of the net estate, and which transfers count as testamentary substitutes, is where these cases are won and lost. We trace assets, value the estate, and hold fiduciaries accountable for full and honest disclosure.

The Deadline You Cannot Miss

The right of election is not automatic. The surviving spouse must file a written notice of election within a strict statutory period, generally measured from the issuance of letters to the estate’s fiduciary, with an outer limit tied to the date of death. Filing late can extinguish the right entirely. Because the timing rules are unforgiving, a spouse who suspects the will shortchanges them should seek counsel immediately.

When the Right Can Be Lost

Not every spouse qualifies. The right can be waived in a valid prenuptial or postnuptial agreement, and it can be forfeited under EPTL 5-1.2 in certain circumstances, such as abandonment of the deceased spouse or failure to support them. These disqualification questions are often hotly contested, and the family fighting the election will look hard for grounds to defeat it.

How We Help

We represent surviving spouses asserting the elective share and beneficiaries challenging it. For spouses, we file the notice on time, compel an accounting, and litigate the value of the net estate. For families defending the estate, we examine whether the election is valid, timely, and not barred by waiver or disqualification.

Consult a New York Attorney

The elective share involves precise calculations and deadlines under New York’s EPTL. This page is general information and not legal advice. Before relying on it, consult a licensed New York attorney who can review your marriage, the estate, and the filing deadlines that apply in your Surrogate’s Court.