Articles Posted in Right of Election

The surviving spouse of a decedent is afforded numerous post-death rights.  At the most basic level, where the decedent did not have a Last Will and Testament, pursuant to Estates Powers and Trusts Law Section 4-1.1, the surviving spouse is entitled to be paid the entire intestate estate or at least the first $50,000.00 of the intestate estate along with fifty percent (50%) of any sums in excess of such amount when there are surviving children.

In some cases, a decedent’s assets consist of items that are part of either an intestate or testate estate (administration or probate).  These items are owned by the decedent in his name alone.  However, a part of the estate may pass directly to named beneficiaries or joint owners.  These items do not pass through the portion of the estate controlled by the estate executor or administrator.

In order to protect a spouse’s post-death interest, Estates, Powers and Trusts Law Section 5-1.1-A, entitled “Right of election by surviving spouse,” gives the spouse a right to receive at least one-third of a decedent’s net estate.  This statute prevents one spouse from disinheriting the other by leaving all of his assets directly to a third party through beneficiary designations or similar transfers.  The New York Probate Lawyer Blog has reviewed this statute in numerous articles.

A person who is planning the disposition of estate assets needs to make a number of decisions.  Among these is the identity of intended beneficiaries and the value or amount of the interest to be provided.  These determinations can occur in different forms.  Where someone prepares a Last Will and Testament the document is going to include various dispositions.  Additionally, with regard to assets that pass outside of the administration estate, such as joint accounts or assets that have designated beneficiaries, the name of the intended payee must be provided.

A spouse of a decedent stands in a preferred position regarding the disposition of a decedent’s assets.  This is because a spouse, unlike any other family member including children, cannot be entirely disinherited.  Estates, Powers and Trusts Law Section 5-1.1.A entitled “Right of election by surviving spouse,” provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate.

The interesting and complicating aspect of EPTL 5-1.1.A is that it includes as part of the value of asset calculation items identified as “testamentary substitutes.”  These items include assets that pass to third parties upon death such as bank accounts that are payable upon death either in a joint account or as a pay on death account or retirement or death benefit funds.  The intention of the statute is to prevent a decedent from diverting assets for which a surviving spouse would have a right to receive a share of.  The New York Probate Lawyer Blog has posted numerous articles regarding estate settlement and spousal rights.

When a person dies it is necessary to determine the individuals who have a right to inherit the estate assets.  While this may at first seem to be an easy task, the fact is that in many cases the first identification of such persons may be complicated and time consuming.

To begin with, an initial inquiry needs to be made as whether the decedent had a Last Will and Testament.  If so, the Will sets forth the decedent’s estate plan and provides for various named beneficiaries.  It is also important to see if the Will was prepared by a New York Estate Attorney who may have information regarding the identity of the named beneficiaries and the decedent’s next of kin.

In the proceeding to probate a Will all of the decedent’s distributes (next of kin) must be notified.  Also, if there is no Will and the decedent died intestate, the distributees are the persons who are entitled to share the estate assets.

When a person dies the New York Estate Laws provide certain preferential rights to a surviving spouse. For example, a surviving spouse has priority to be appointed as Administrator of an intestate estate. Also, the surviving spouse receives the largest distributive share of an intestate estate.

A spouse cannot be disinherited. The Estates, Powers and Trusts Law Section
 5-1.1-A entitled “A Right of election by surviving spouse” gives a surviving spouse a Right of Election. This means that the survivor can elect to receive one-third of a decedent’s net estate. The New York Probate Lawyer Blog has had many posts regarding the Right of Election and the Notice of Right of Election.

This right is often utilized so that a spouse can receive a share of pension benefits or death benefits that have another person designated as the beneficiary.

The rights of a surviving spouse have been safeguarded in various provisions of the New York Estate Law. For example, when a person dies without a Last Will his estate is distributed according to the laws of intestacy. Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that the intestate share of a surviving spouse takes priority even where there are surviving children. A surviving spouse receives the first $50,000.00 of the estate plus one-half of the balance.

The New York Probate Lawyer Blog has published many articles relating to the various rights that family members have when a person dies without a Last Will. The intestate administration of a decedent’s estate can be quite complicated especially when issues of kinship exist. Continue reading

There are numerous protections afforded to a surviving spouse in the New York Estate Laws. When a person dies without a Last Will, the Estates, Powers and Trusts Law (EPTL) Section 4-1.1 provides that a surviving spouse is entitled to receive the sum of $50,000.00, plus one-half of the decedent’s administration estate. Additionally, it is important to know that a spouse cannot be disinherited. Even if a decedent leaves a Last Will, a spouse can file an election so as to receive at least one-third of an estate. This Right of Election applies to situations where the decedent dies with or without a Will. The New York Probate Lawyer Blog has published numerous articles concerning the Right of Election.

In many cases, a decedent may leave property to designated beneficiaries outside of the estate property. These assets may include joint bank accounts, joint real estate or retirement benefits. There are instances where the decedent had been employed by the government and there are significant death benefits. Even where these benefits are made payable to children or other third parties, the spouse through a Right of Election may be entitled to receive one-third of these benefits. One common source of benefits is from NYCERS which is the New York City Employees’ Retirement System. I have represented many individuals in connection with using a Spousal Right of Election to obtain a spousal share of these funds. Continue reading

The estate of a decedent is distributed in two basic ways. If a person dies with a Last Will and Testament, once the Will is admitted to probate, the Will provisions determine the distribution. When a person dies without a Last Will, then he is considered to have died intestate. An intestate estate is distributed to the decedent’s next of kin according to Estates, Powers and Trusts Law (EPTL) Section 4-1.1.

The New York Probate Lawyer Blog has previously reviewed statutory provisions known as a Right of Election. This law is contained in EPTL Section 5-1.1-A. A Right of Election gives a surviving spouse the right to receive a share of a decedent’s estate even if the spouse is disinherited. For example, if a decedent leaves a Last Will and makes no provision for the surviving spouse, the spouse can file a Right of Election with the Surrogate’s Court. The statute provides that the spouse is entitled to receive the greater of $50,000.00 or one-third of the decedent’s net estate. In these cases, when the Executor is ready to settle the estate, he will calculate the spouse’s Right of Election share for distribution even though there is no provision made in the Will for the spouse. Continue reading