New York law protects surviving spouses from being completely disinherited. If you’re a spouse who was left out of a will or left less than a fair share of your late partner’s estate, you may still have a legal right to claim a portion of the assets under New York’s Right of Election statute.
What Is the Right of Election in New York?
The Right of Election is a New York estate law that allows a surviving spouse to claim a share of a deceased spouse’s estate — regardless of what the will says.
Let’s say a husband creates a will and leaves everything to his children, excluding his wife entirely. Maybe he wrote the will before they got married and never updated it. Or maybe he intended to leave everything to his children from a prior relationship.
If the will was properly executed and meets all legal requirements, the wife wouldn’t have much chance of contesting it in court. New York courts generally assume that if someone wanted to change their will, they had every opportunity to do so — and didn’t.
But this doesn’t mean the surviving spouse is left with nothing.
Who Qualifies as a “Spouse” in New York?
To file a Right of Election, you must be legally recognized as the deceased person’s spouse. This includes:
- Couples legally married in New York or anywhere else
- Same-sex spouses, if legally married
- Jewish marriages, if civilly recognized
Note: Simply being in a domestic partnership or cohabiting does not qualify — the law requires a valid legal marriage.
Right of Election for Jewish Marriages in New York
Under New York law, a couple married under Jewish law can be recognized as legally married for purposes of the Right of Election—provided the marriage meets the state’s legal requirements.
New York does not require a marriage license for a marriage to be valid. If a couple solemnizes their marriage in the presence of a clergyperson and declares their intent to marry, the marriage can be legally recognized—even without a license. Therefore, a Jewish marriage performed by a rabbi, with both parties declaring their intent to marry, can be considered valid under New York law.
However, merely having a religious ceremony does not automatically confer legal status. The marriage must comply with New York’s legal requirements, such as both parties being of legal age and not already married to someone else.
How Much Can a Surviving Spouse Claim?
Under New York’s Right of Election law, the surviving spouse is entitled to the greater of:
- $50,000, or
- One-third (33.3%) of the deceased spouse’s estate, including certain non-probate assets such as:
– Joint accounts
– Totten trusts
– Pay-on-death (POD) accounts
– Revocable trusts
This right applies whether the spouse was:
- Left out of the will entirely, or
- Included, but left less than one-third of the estate
Lets say the decedent’s estate is $100,000 and the wife is left out completely or is left $10,000 under the will. Under the Right of Election, the wife is entitled to $50,000.
What if the will leaves the house to the wife and the rest of the estate to his children. If the house is worth 1 million dollars and the rest of the estate is $5 million dollars, then the wife can take the house and an additional $650,000 under the Right of Election statute.
Important Deadlines
The Right of Election is not automatic. It must be claimed. To exercise this right, the surviving spouse must:
- File a notice of election with the Surrogate’s Court
- Do so within 6 months of the executor appointment, but no later than 2 years after the date of death
Failure to file within this timeframe may result in losing the right altogether.
Can You File a Right of Election After the Deadline?
Under New York law, the Right of Election must be filed within strict timeframes. However, Surrogate’s Court does have discretion to grant an extension in exceptional circumstances.
In a case handled by our office, the decedent’s daughter filed an administration proceeding, claiming there was no will. The court appointed her as the estate administrator. For over two years, the family operated under the assumption that the decedent had died intestate.
Then, in a dramatic turn, two children from an extramarital affair surfaced—presenting a will that had never been disclosed. That will disinherited the surviving spouse entirely and divided the estate between the children only.
By this time, the deadline to file a Right of Election had already passed.
Attorneys for the surviving spouse had to petition the Surrogate’s Court for permission to file late. They argued that the spouse had no knowledge of the will. The court granted the extension—recognizing the extraordinary circumstances and the need for fairness.
Children and Other Relatives: No Equivalent Protection
It’s important to note that this protection applies only to spouses. In New York:
- Children and other next of kin can be completely disinherited.
- A parent can legally leave nothing to a child, unless there’s a contractual obligation or fraud involved.
If you’re a disinherited child or family member, you may have other legal avenues—such as challenging the will’s validity—but you do not have an automatic right to a share of the estate like a spouse does.
When Is a Spouse Disqualified from the Right of Election in New York?
While New York law generally protects surviving spouses from being completely disinherited, there are specific situations where a spouse may be disqualified from exercising the Right of Election, such as:
Divorce or Annulment
If the marriage was legally terminated by a final judgment of divorce or annulment before the decedent’s death, the surviving spouse is disqualified from claiming an elective share.
Prenuptial or Postnuptial Agreement
A spouse may voluntarily waive their right to an elective share in a prenuptial or postnuptial agreement.
Final Judgment of Separation
A final judgment of separation, issued by a court, can disqualify a spouse from the Right of Election. A a mere separation agreement without court approval does not have this effect.
Abandonment
If the surviving spouse abandoned the decedent and the abandonment continued until the time of death, she may be barred from claiming an elective share.
Calculating the Right of Election
This is one of the most critical parts of asserting a right of election in New York — and one where costly mistakes are easy to make. Never, under any circumstance, rely on someone else’s numbers without hiring your own experienced estate attorney. One misstep in the calculation could cost you tens, hundreds, or even millions of dollars, depending on the size of the estate. The governing statute is complex and often misunderstood.
First, you add all assets of the estate. An important note here is that New York law also includes non-probate assets when calculating the elective share. Examples include:
- Joint bank accounts
- Payable-on-death accounts
- Assets held in revocable trusts
- Certain gifts made within one year of death
Next, you deduct debts, administration expenses, and reasonable funeral costs from the total value of the estate. However, estate taxes are specifically excluded when determining the value of the elective share — a key distinction that can significantly impact what you’re entitled to.
Can You Get More Than 33% of the Estate?
It depends. While New York law entitles a surviving spouse to at least one-third of the net estate under the right of election, that doesn’t always mean you’re capped at 33%.
Everything in life — and in estate litigation — can be negotiated, especially when you have the right facts on your side. If your situation involves special circumstances (like questionable transfers, unequal treatment, or evidence of fraud or undue influence), those can become powerful leverage in negotiations.
In one recent case, our client walked away with $3 million more than her standard elective share — because we built a strong case and negotiated aggressively for a larger portion of the estate.
Bottom line: Don’t assume you’re limited to one-third. With the right legal strategy, you may be entitled to much more.
Need Help Filing a Right of Election in New York?
If you’re a surviving spouse who has been left out of a will — or received less than your fair share — you don’t have to face this alone.
As seasoned New York estate attorneys, we will guide you through the complexities of the right of election and help you take the steps needed to protect your interests.
Reach out today to schedule a confidential consultation and ensure you claim what you’re legally entitled to.
