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Rights of a Surviving Spouse

Right of Election Under New York Law

Are you interested in learning about the rights of a surviving spouse in New York? If so, we encourage you to contact The Law Office of Michael J. Brescia, P.C. Our Long Island lawyer is intimately familiar with New York's laws as they pertain to the rights of a surviving spouse, as well as how wills & trusts, and intestate succession affect how assets are distributed.

We gladly offer free consultations to all prospective clients and we service the areas of Nassau, Suffolk, Westchester, and New York counties, and the New York Metropolitan Area.

What Rights Does a Surviving Spouse Have?

It is the prerogative of a surviving spouse to either accept the provisions of a dead spouse in the will or to disregard the will and claim their share as specified under EPTL § 5-1.1-A.

When spouses die, they typically leave money and property to their surviving husband or wife in a will. However, a will is not necessarily the final word on what happens to a married person's estate. The surviving spouse may have the option to either accept the provisions in the will or choose an alternative called right of election.

In New York, What Does the Statute Specify?

In New York, the statutes specify that a surviving spouse can either accept the distribution in the will or they can instead receive their "elective share" under state law. The right of election ensures that a surviving spouse receives their fair share from the estate and it makes it impossible to disinherit a spouse.

When the will leaves more than the elective share to the surviving spouse, he or she would not exercise their right of election. The right of election only comes into play when the will leaves the spouse with less than his or her elective share.

Under the current law, the elective share of a surviving spouse is the greater of one-third of the net estate or $50,000. When calculating the net estate, debts, administration costs, and reasonable funeral expenses are deducted, but all estate taxes are disregarded. Furthermore, the elective share is reduced by any interests which passes outright to the spouse, whether by the decedent's will, by intestacy, or by a testamentary substitute (joint bank accounts, gifts, property held jointly, retirement accounts, TOD accounts, POD accounts and securities etc.)

Contact a Long Island Attorney

Get more information about a spouse's right of election. Contact a Long Island lawyer from The Law Office of Michael J. Brescia, P.C.

In a free case evaluation, we can answer your questions and provide you with insight into New York's estate and inheritance laws.

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