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New York’s Right of Election

New York estate litigators Tilem & Associates can not only help you plan your estate, but can assist you if you are already involved in the situation where there is a dispute over what you will inherit either through a will contest or because your loved one died without a will, also called intestate.

So, you are married. You spend years with your spouse. You have your ups. You have your downs (but mostly, you have downs). Then, there comes a point when you decide that you are going to write your will and that you are going to disinherit your spouse and bequeath your assets to others. Unfortunately, or fortunately, depending on your position, New York State does not allow an individual to disinherit his or her spouse.

When someone dies with a will in New York, EPTL 5-3.1, allows the surviving spouse to collect certain assets, no matter who the will directs those assets be given to. The surviving spouse can collect cash or cash equivalents of up to $25,000. Moreover, the surviving spouse has the right to inherit one automobile (worth up to $25,000). (By the way, if the value of the car is greater than $25,000, the spouse can still keep the vehicle, but the difference in value will have to be paid to the estate.)

In addition to EPTL 5-3.1, the surviving spouse is given a right under EPTL 5-1.1A to take the greater of 1/3 or $50,000 from the decedent’s “net estate” which is defined as the probate estate plus “testamentary substitutes” under the statute. This includes assets passing under a will, along with jointly owned property and bank accounts, or assets held in a living trust, or assets with beneficiary designations, and gifts made by the decedent within one year of death. The intent behind the law is to allow the surviving spouse to access their “elective share.” Even if someone dies without a will (known as intestate), their spouse still has the right to assert their “right of election.”

Recently, Tilem & Associates was able to help a young widow do just that! After only a year of marriage, this poor woman’s husband passed away and he passed without a will. Because they had only been married for such a short time and because he passed away unexpectedly, the decedent had not had a chance to change all of his personal documents to acknowledge his new wife. Unfortunately, the decedent never changed the beneficiary of his pension and when he died, his wife sought assistance in obtaining her portion of the $300,000 lump sum benefit his pension holder was to pay out to the designated beneficiaries. Tilem & Associates has assisted this young woman in setting up an estate, asserting her right of elective share and navigating her way through the court to have the pension declared a testamentary substitute so that she can collect one third of her late husband’s pension.

If you have any questions about disinheriting a spouse or a right of election in New York, do not hesitate to contact us for additional information.