Spousal Rights and the Elective Share in New York

In New York, you cannot fully disinherit a surviving spouse. The law guarantees them a minimum share of your estate — the “elective share” — even if your will leaves them nothing. Whether you are planning your own estate or trying to understand your rights as a surviving spouse, here is a practical checklist.

What the Elective Share Is

Under New York’s EPTL §5-1.1-A, a surviving spouse may elect to take the greater of $50,000 or one-third of the deceased spouse’s “net estate.” This right exists regardless of what the will says. If you try to leave your spouse only a token amount, they can override your will and claim the statutory share.

The Trap: Testamentary Substitutes

The most misunderstood part of New York law is that the elective share is not calculated on the probate estate alone. It reaches “testamentary substitutes” — assets that pass outside the will but still count toward the spouse’s share. These typically include:

• Joint bank accounts and Totten (in-trust-for) accounts
• Property held in joint tenancy with right of survivorship
• Assets in a revocable trust
• Certain gifts made within one year of death
• Retirement benefits and some life insurance arrangements

Translation: you cannot dodge the elective share simply by moving assets into a living trust or joint accounts. New York deliberately closed those loopholes.

Checklist for the Planning Spouse

• Assume your spouse is entitled to at least one-third — plan around it, not against it.
• If you and your spouse have agreed to different arrangements, use a properly executed prenuptial or postnuptial waiver. New York enforces these only if they meet strict formalities.
• Remember that testamentary substitutes count — inventory joint accounts and trust assets when projecting the share.
• Coordinate with the New York estate tax: the unlimited marital deduction means transfers to a spouse generally pass tax-free, but the 2026 exclusion of $7,350,000 (cliff near $7,717,500) still governs the rest.

Checklist for the Surviving Spouse

• Act fast: the right of election must generally be exercised within six months of letters being issued by the Surrogate’s Court, and no later than two years after death.
• File the election with the Surrogate’s Court in the county handling the estate.
• Gather records of joint accounts, trusts, and recent transfers — these expand the base your one-third is measured against.
• Get advice before signing any waiver or accepting a settlement.

Why Deadlines Decide Outcomes

The elective share is a use-it-or-lose-it right. Surviving spouses in New York lose meaningful claims every year simply by missing the Surrogate’s Court filing window. If you believe you were shortchanged, the calendar is your first concern.

Consult a New York attorney. Elective share math, testamentary substitutes, and waiver enforceability are technical and deadline-driven. A New York estate planning or estate litigation attorney can protect your position whether you are planning or claiming.