If you’re a spouse in New York City, Brooklyn, Queens, Staten Island, Bronx, Westchester, or Long Island, and you were left out of a will, or left with less than one-third of your partner’s estate, you still have legal recourse. Under New York’s Right of Election law, you may be entitled to a substantial share of the estate, no matter what the will says.
As seasoned Right of Election lawyers in New York, our goal is to secure the biggest share of the estate for the surviving spouse, no matter what the will says.
What Is the Right of Election?
New York’s Right of Election is fairly straightforward.
If your spouse died after September 1, 1992, you have the legal right to claim the greater of:
- $50,000, or
- One-third of the decedent’s net estate (also known as the Elective Share)
This Elective Share includes more than just what is left in the will. It also covers non-probate assets like joint accounts, revocable trusts, payable-on-death accounts, and certain gifts made within a year of death. These are known as Testamentary Substitutes.
You May Be Owed More Than You Think
Let’s say your spouse leaves everything to his children from a prior marriage, or writes a will before your marriage and never updates it.
Even if the will is valid and properly executed, you are still entitled to your Elective Share under New York law. The only exception is if you waived this right in a prenuptial or postnuptial agreement.
In one case, our client was initially offered far below her rightful share. After we uncovered concealed gifts and trusts, we negotiated a settlement $3 million higher than her base statutory claim.
Don’t assume 33.3% is your limit – with strong legal counsel, you may be entitled to far more.
Who Qualifies as a Spouse Under New York Law?
To file for the Right of Election, you must have been actually married at the time of your spouse’s death. Meaning, the marriage must have been legal.
This includes:
- Legally married heterosexual or same-sex couples
- Jewish marriages that meet New York’s civil standards
- Marriages performed without a license but solemnized with mutual consent and proper officiation
However, you may be disqualified if:
- The marriage ended in divorce or annulment
- A court issued a final judgment of separation
- You waived your rights in a legal agreement
- You abandoned or failed to support your spouse
If you’re unsure of your eligibility, speak to a qualified New York estate attorney immediately.
How the Elective Share Is Calculated
Calculating the Elective Share is no simple matter. The statute is long and can be confusing to most. Many times this is where the survivor spouse gets less than what they’re entitled to because the calculation is wrong or it misses key assets.
The Elective Share calculation includes:
Probate assets — those passed through a will or by intestacy.
For example, the decedent dies with a house in NY, home in Florida, and a stock account. All these assets are in his name alone.
Non-probate assets (Testamentary Substitutes) — like joint accounts, Totten trusts, and certain retirement benefits.
For example, the decedent dies with a house in NY, home in Florida, stock account, joint account with his mother, and IRA payable to his son. All these assets are included in the right of election calculation.
Less valid debts, administration expenses, and funeral costs.
Not deducted: estate taxes – a key detail often misunderstood or not considered.
How to File a Right of Election in New York
To preserve your rights, you must:
- File the notice with the Surrogate’s Court in the appropriate county
- Serve a Notice of Election on the estate’s executor or administrator
- Do this within 6 months of Letters Testamentary or Letters of Administration issuing, and no later than 2 years after the date of death.
If the right of election is not filed within the 2 years after death deadline, the court may grant an extension under special circumstances. For example, you were unaware that a will existed or you were misled about the estate’s contents. But these exceptions are not guaranteed and require strong legal justification. The sooner the right of election is filed with the Court the better.
FAQ
What if there is a pending divorce at the time of death?
If the couple was still legally married at the time of death, the surviving spouse may still claim the elective share — unless the court had already issued a final judgment of divorce or separation before the decedent’s death.
Does the Right of Election apply to non-probate assets like life insurance?
It can. The elective share includes certain jointly held assets, payable-on-death accounts such as life insurance, and gifts made shortly before death.
Does the Right of Election include foreign property or assets located outside of New York?
It can. Property outside of New York State can be considered in the calculation if the decedent was domiciled in New York.
What if the spouse was intentionally left out of the will, but received significant non-probate assets (like a retirement account or life insurance)?
If the total of non-probate assets going to the surviving spouse meets or exceeds the elective share amount, the right of election may be satisfied and there’s nothing further owed from the probate estate.
Can the Right of Election reach assets held in a revocable living trust?
Yes. Under New York’s “testamentary substitutes” rule, assets in a revocable trust may be included in the elective share calculation if the decedent retained control over the trust during life.
What happens if the decedent transferred assets shortly before death to avoid the elective share?
New York law includes certain lifetime transfers (within one year of death, where the decedent retained enjoyment or control) as part of the elective share. These transfers may be “clawed back” to calculate the surviving spouse’s share.
Why You Need a New York Right of Election Lawyer
This area of estate law is complex and opposing counsel, in our experience, are extremely aggressive in fighting a surviving spouse and their right of election.
In addition to that, mistakes in filing, calculation, or interpretation can cost you a substantial amount of money.
Here’s what we do:
- Evaluate whether you qualify for the Elective Share
- Identify all assets – including any hidden or improperly transferred assets
- Calculate your maximum entitlement
- Negotiate for a larger share if warranted
- File everything properly and on time with the Surrogate’s Court
If you’ve been left out of your spouse’s will, Mishiyeva Law, PLLC can vigorously represent you. We’ve helped surviving spouses across New York navigate the Right of Election process and reclaim their rightful share.
Contact us today for a confidential consultation. We’ll help you determine your eligibility, calculate your elective share, and fight for your financial future.
Call today at 646-233-0826.
Mishiyeva Law, PLLC.
85 Broad Street 18th Floor
New York, NY 10004
United States
