Legislation

Search OpenLegislation Statutes
This entry was published on 2014-09-22
The selection dates indicate all change milestones for the entire volume, not just the location being viewed. Specifying a milestone date will retrieve the most recent version of the location before that date.
SECTION 5-1.1
Right of election by surviving spouse
Estates, Powers & Trusts (EPT) CHAPTER 17-B, ARTICLE 5, PART 1
§ 5-1.1 Right of election by surviving spouse

(a) Election by surviving spouse against will executed after August
thirty-first, nineteen hundred thirty and prior to September first,
nineteen hundred sixty-six.

(1) Where a testator executes a will after August thirty-first,
nineteen hundred thirty but prior to September first, nineteen hundred
sixty-six, and is survived by a spouse, a personal right of election is
given to the surviving spouse to take a share of the decedent's estate,
subject to the following:

(A) For the purposes of this section, the elective share of the
surviving spouse is one-third of the net estate if the decedent is
survived by one or more issue and, in all other cases, one-half of such
net estate. In computing the net estate, debts, administration and
reasonable funeral expenses shall be deducted but all estate taxes shall
be disregarded, except that nothing contained herein relieves the
surviving spouse from contributing to all such taxes the amounts
apportioned against him under 2-1.8.

(B) Where the elective share is over twenty-five hundred dollars and
the testator has made a testamentary disposition in trust of an amount
equal to or greater than the elective share, with income therefrom
payable to the surviving spouse for life, the surviving spouse has the
limited right to elect to take the sum of twenty-five hundred dollars
absolutely, which shall be deducted from the principal of such trust and
the terms of the will remain otherwise effective.

(C) Where the elective share of the surviving spouse does not exceed
twenty-five hundred dollars, the surviving spouse has the right to elect
to take his elective share absolutely, which shall be in lieu of any
provision for his benefit in the will.

(D) Where the will contains an absolute disposition to the surviving
spouse of or in excess of the sum of twenty-five hundred dollars and
also a disposition in trust with income payable to such spouse for life
of an amount equal to or greater than the difference between the
absolute disposition and his elective share, the surviving spouse has no
right of election.

(E) Where the will contains an absolute disposition to the surviving
spouse of an amount less than the sum of twenty-five hundred dollars and
also a disposition in trust with income payable to such spouse for life
of an amount equal to or greater than the difference between the
absolute disposition and his elective share, the surviving spouse has
the limited right to elect to take the sum of twenty-five hundred
dollars, inclusive of the amount of such absolute disposition, and the
difference between such disposition and the sum of twenty-five hundred
dollars shall be deducted from the principal of such trust and the terms
of the will remain otherwise effective.

(F) Where the aggregate of the provisions in the will for the
surviving spouse, including the principal of a trust, an absolute
disposition or any other kind of testamentary disposition is less than
the elective share, the surviving spouse has the limited right to elect
to take the difference between such aggregate and the amount of the
elective share, and the terms of the will remain otherwise effective. In
every estate, the surviving spouse has the limited right to withdraw the
sum of twenty-five hundred dollars if the elective share is equal to or
greater than that amount. Such sum, however, is inclusive of any
absolute disposition, whether general or specific. Where a trust is
created for the life of the surviving spouse, such sum of twenty-five
hundred dollars or any lesser amount necessary to make up that sum is
payable from the principal of such trust.

(G) The provisions of this paragraph with respect to trusts with
income payable for the life of the surviving spouse likewise apply to a
legal life estate, to an annuity for life or to any other disposition in
the will by which income is payable for the life of the surviving
spouse. In computing the value of the dispositions in the will, the
capital value of the fund or other property producing the income shall
be taken and not the value of the life estate.

(H) The grant of authority in a will to a fiduciary or his successor
(i) to act without bond, (ii) to name his successor to act without bond,
(iii) to sell assets of the estate upon terms fixed by him, (iv) to
invest the funds of the estate in other than legal investments, (v) to
retain in the assets of the estate investments or property owned by the
testator in his lifetime, (vi) to make distribution in kind, (vii) to
make a binding and conclusive valuation of assets for the purpose of
their distribution, (viii) to allocate assets either outright or in
trust for the life of a surviving spouse or (ix) to conduct the affairs
of the estate with partial or total exoneration from the legal
responsibility of a fiduciary, shall not, either singly or in the
aggregate, give the surviving spouse an absolute right to take his
elective share; but the surrogate's court having jurisdiction of the
estate, notwithstanding the terms of the will, may, in its discretion,
in an appropriate proceeding by the surviving spouse or upon an
accounting, direct and enforce for the protection of the surviving
spouse an equitable distribution, allocation or valuation of the assets,
enforce the liability of a fiduciary under the law and make such other
directions, consistent with the provisions and purposes of this
paragraph, as it may consider necessary for the protection of the
surviving spouse.

(b) Inter vivos dispositions treated as testamentary substitutes for
the purpose of election by surviving spouse.

(1) Where a person dies after August thirty-first, nineteen hundred
sixty-six and is survived by a spouse who exercises a right of election
under paragraph (c), the following transactions effected by such
decedent at any time after the date of the marriage and after August
thirty-first, nineteen hundred sixty-six, whether benefiting the
surviving spouse or any other person, shall be treated as testamentary
substitutes and the capital value thereof, as of the decedent's death,
included in the net estate subject to the surviving spouse's elective
right:

(A) Gifts causa mortis.

(B) Money deposited, after August thirty-first, nineteen hundred
sixty-six, together with all dividends credited thereon, in a savings
account in the name of the decedent in trust for another person, with a
banking organization, savings and loan association, foreign banking
corporation or organization or bank or savings and loan association
organized under the laws of the United States, and remaining on deposit
at the date of the decedent's death.

(C) Money deposited, after August thirty-first, nineteen hundred
sixty-six, together with all dividends credited thereon, in the name of
the decedent and another person and payable on death, pursuant to the
terms of the deposit or by operation of law, to the survivor, with a
banking organization, savings and loan association, foreign banking
corporation or organization or bank or savings and loan association
organized under the laws of the United States, and remaining on deposit
at the date of the decedent's death.

(D) Any disposition of property made by the decedent after August
thirty-first, nineteen hundred sixty-six whereby property is held, at
the date of his death, by the decedent and another person as joint
tenants with a right of survivorship or as tenants by the entirety.

(E) Any disposition of property made by the decedent after August
thirty-first, nineteen hundred sixty-six, in trust or otherwise, to the
extent that the decedent at the date of his death retained, either alone
or in conjunction with another person, by the express provisions of the
disposing instrument, a power to revoke such disposition or a power to
consume, invade or dispose of the principal thereof. The provisions of
this paragraph shall not affect the right of any income beneficiary to
the income undistributed or accrued at the date of death.

(2) Nothing in this paragraph shall affect, impair or defeat the right
of any person entitled to receive (A) payment in money, securities or
other property under a thrift, savings, pension, retirement, death
benefit, stock bonus or profit-sharing plan, system or trust, (B) money
payable by an insurance company or a savings bank authorized to conduct
the business of life insurance under an annuity or pure endowment
contract, a policy of life, group life, industrial life or accident and
health insurance or a contract by such insurer relating to the payment
of proceeds or avails thereof or (C) payment of any United States
savings bond payable to a designated person, and such transactions are
not testamentary substitutes within the meaning of this paragraph.

(3) Transactions described in subparagraphs (C) or (D) shall be
treated as testamentary substitutes in the proportion that the funds on
deposit were the property of the decedent immediately before the deposit
or the consideration for the property held as joint tenants or as
tenants by the entirety was furnished by the decedent. The surviving
spouse shall have the burden of establishing the proportion of the
decedent's contribution. Where the other party to a transaction
described in subparagraphs (C) or (D) is a surviving spouse, such spouse
shall have the burden of establishing the proportion of his
contribution, if any. For the purpose of this subparagraph, the
surrogate's court may accept such evidence as is relevant and competent,
whether or not the person offering such evidence would otherwise be
competent to testify.

(4) The provisions of this paragraph shall not prevent a corporation
or other person from paying or transferring any funds or property to a
person otherwise entitled thereto, unless there has been served
personally upon such corporation or other person a certified copy of an
order enjoining such payment or transfer made by the surrogate's court
having jurisdiction of the decedent's estate or by another court of
competent jurisdiction. Such order may be made, on notice to such
persons and in such manner as the court may direct, upon application of
the surviving spouse or any other interested party and on proof that the
surviving spouse has exercised his right of election under paragraph
(c). Service of a certified copy of such order on the corporation or
other person holding such fund or property shall be a defense to it,
during the effective period of the order, in any action or proceeding
brought against it which involves such fund or property.

(5) This paragraph shall not impair or defeat the rights of creditors
of the decedent with respect to any matter as to which any such creditor
has rights.

(6) In case of a conflict between this paragraph and any other
provision of law affecting the transactions described in subparagraph
(1), this paragraph controls.

(c) Election by surviving spouse against wills executed and
testamentary provisions made after August thirty-first, nineteen hundred
sixty-six; election where decedent dies intestate as to all or any part
of his estate.

(1) Where, after August thirty-first, nineteen hundred sixty-six, a
testator executes a will disposing of his entire estate, and is survived
by a spouse, a personal right of election is given to the surviving
spouse to take a share of the decedent's estate, subject to the
following:

(A) For the purposes of this paragraph, the decedent's estate includes
the capital value, as of the decedent's death, of any property described
in subparagraph (b) (1).

(B) The elective share, as used in this paragraph, is one-third of the
net estate if the decedent is survived by one or more issue and, in all
other cases, one-half of such net estate. In computing the net estate,
debts, administration and reasonable funeral expenses shall be deducted
but all estate taxes shall be disregarded, except that nothing contained
herein relieves the surviving spouse from contributing to all such taxes
the amounts apportioned against him under 2-1.8.

(C) The term "testamentary provision", as used in this paragraph,
includes, in addition to dispositions made by the decedent's will, any
transaction described as a testamentary substitute in subparagraph (b)
(1).

(D) Where the elective share is over ten thousand dollars and the
decedent has by testamentary provision created a trust in an amount
equal to or greater than the elective share, with income therefrom
payable to the surviving spouse for life, the surviving spouse has the
limited right to elect to take the sum of ten thousand dollars
absolutely, which shall be deducted from the principal of such trust and
the terms of the instrument making the testamentary provision remain
otherwise effective.

(E) Where the elective share of the surviving spouse does not exceed
ten thousand dollars, the surviving spouse has the right to take the
elective share absolutely, in lieu of any testamentary provision for his
benefit.

(F) Where an absolute testamentary provision is made for the surviving
spouse of or in excess of ten thousand dollars, and also a provision in
trust with income payable to such spouse for life of an amount equal to
or greater than the difference between such absolute testamentary
provision and his elective share, the surviving spouse has no right of
election.

(G) Where an absolute testamentary provision is made for the surviving
spouse in an amount less than ten thousand dollars, and also a
testamentary provision in trust with income payable to such spouse for
life of an amount equal to or greater than the difference between such
absolute testamentary provision and his elective share, the surviving
spouse has the limited right to take the sum of ten thousand dollars,
inclusive of the amount of such absolute testamentary provision, and the
difference between such absolute testamentary provision and the sum of
ten thousand dollars shall be deducted from the principal of the trust
and the terms of the instrument making the testamentary provision remain
otherwise effective.

(H) Where the aggregate of the testamentary provisions for the
surviving spouse, including the principal of a trust, an absolute
testamentary provision or any other kind of testamentary provision, is
less than the elective share, the surviving spouse has the limited right
to elect to take the difference between such aggregate and the amount of
the elective share, and the terms of the instrument making such
testamentary provisions remain otherwise effective. In every estate, the
surviving spouse has the limited right to withdraw the sum of ten
thousand dollars if the elective share is equal to or greater than that
amount. Such sum, however, is inclusive of any absolute testamentary
provision. Where a trust is created with income payable to the surviving
spouse for life, such sum of ten thousand dollars or any lesser amount
necessary to make up that sum is payable from the principal of such
trust.

(I) The provisions of this paragraph with respect to trusts for the
life of the surviving spouse also apply to a legal life estate, to an
annuity for the life of the surviving spouse, to an annuity trust and a
unitrust as provided in subparagraph (K) of paragraph one of this
subdivision or to any other testamentary provision by which income is
payable for the life of the surviving spouse. In computing the value of
the testamentary provisions the capital value of the fund or other
property producing the income shall be taken and not the value of the
life estate.

(J) The surviving spouse is entitled to take the capital value (in no
case to exceed such spouse's elective share) of the fund or other
property producing the income whenever any instrument making a
testamentary provision of income for his life authorizes:

(i) The reduction of any trust, legal life estate or annuity by
invasion of the principal for another person.

(ii) The termination of any trust, legal life estate or annuity prior
to the death of the surviving spouse by payment of the principal thereof
to another person.

(iii) The fiduciary to pay or apply to the use of the surviving spouse
less than substantially all of the net income from any trust, legal life
estate or annuity.

If an instrument making any such testamentary provision contains
grants of authority to a fiduciary other than the foregoing, the
surrogate's court having jurisdiction of the decedent's estate may, in
its discretion, in an appropriate proceeding by the surviving spouse or
upon an accounting, direct and enforce for the protection of the
surviving spouse an equitable distribution, allocation or valuation of
the assets, enjoin any fiduciary, whether appointed by will or
otherwise, from exercising any power, statutory or otherwise, which
would be prejudicial to the interests of the surviving spouse, enforce
the liability of a fiduciary under the law and make such other
directions, consistent with the provisions and purposes of this
paragraph, as it may consider necessary for the protection of the
surviving spouse.

(K) If any testamentary provision for the surviving spouse provides
that such spouse shall receive, for life and not less often than
annually, from a charitable remainder annuity trust, as defined in
paragraph one of subdivision (d) of section six hundred sixty-four of
the United States Internal Revenue Code, a sum certain (which is not
less than five percent of the initial net fair market value of all
property placed in such trust) or from a charitable remainder unitrust,
as defined in paragraph two of subdivision (d) of section six hundred
sixty-four of such code, a fixed percentage (which is not less than five
percent) of the net fair market value of its assets, valued annually,
such testamentary provisions shall satisfy the provisions of this
paragraph with respect to trusts with income payable to the surviving
spouse for life.

(2) Where, after August thirty-first, nineteen hundred sixty-six, a
person dies intestate as to all or any part of his estate, and, in the
case of part intestacy, executes a will after such date, and is survived
by a spouse, a personal right of election is given to the surviving
spouse to take a share of the testamentary provisions made by the
decedent, as such provisions are defined in subparagraph (1) (C),
subject to the following:

(A) The share of the testamentary provisions to which the surviving
spouse is entitled hereunder is his elective share, as defined in
subparagraphs (1) (A) and (B), reduced by the capital value of all
property passing to such spouse (i) in intestacy under 4-1.1, (ii) by
testamentary substitute as described in subparagraph (b) (1) and (iii)
by disposition under the decedent's last will.

(B) The satisfaction of such elective share shall not reduce the
intestate share of any other distributee of the decedent.

(C) Whenever a testamentary provision for the surviving spouse takes
the form of income payable for his life:

(i) The surviving spouse has the limited right to elect to take,
absolutely, the sum of ten thousand dollars or the share to which he is
entitled hereunder, whichever is less. Such sum, however, is inclusive
of any absolute testamentary provision, as described in subparagraph (1)
(C), and any amount to which the surviving spouse is entitled in
intestacy under 4-1.1, and is payable from the principal of any trust,
legal life estate or annuity created by such testamentary provision, the
terms of which remain otherwise effective.

(ii) The provisions of subparagraph (1) (J) apply.

(d) General provisions governing right of election.

(1) Where an election has been made under this section, the will or
other instrument making a testamentary provision, as the case may be, is
valid as to the residue after the share to which the surviving spouse is
entitled has been deducted, and the terms of such will or instrument
remain otherwise effective so far as possible.

(2) Whenever a will creates a trust, legal life estate or annuity for
the benefit of the surviving spouse for life, and such will commands,
directs, authorizes or permits the fiduciary to allocate, apportion or
charge receipts or expenses to principal or income in such manner as
will or might deprive the spouse of income as defined in section 11-2.1
of this act or in any other law applicable to such trust, legal life
estate or annuity, and where such trust, legal life estate or annuity,
but for such will provision would satisfy the elective share of the
spouse in whole or in part, such command, direction, authorization or
permission shall not of itself give the surviving spouse an absolute
right to take his elective share. The surrogate's court having
jurisdiction of the decedent's estate may, in any appropriate
proceeding, direct and enforce for the protection of the surviving
spouse an allocation, apportionment or charge of all receipts and
expenses in accordance with applicable legal or equitable principles so
as to assure such surviving spouse of all or substantially all of the
income of such trust, legal life estate or annuity consistent with the
purposes and provisions of this section. The court may enjoin any
fiduciary from exercising any power; authority or permission or doing
any act which would be prejudicial to the rights and interests of such
surviving spouse under this section. The court may enforce the
liability of a fiduciary under the law and make such directions,
consistent with the purposes and provisions of this section, as it may
consider necessary for the protection of the surviving spouse.

(3) Except as otherwise expressly provided in the will or other
instrument making a testamentary provision, ratable contribution to the
share to which the surviving spouse is entitled shall be made by the
beneficiaries (including the recipients of any such testamentary
provision), other than the surviving spouse, under:

(A) In the case of an election under paragraph (a), the decedent's
will.

(B) In the case of an election under paragraph (c), the decedent's
will and other instruments making testamentary provisions.

(4) The right of election is personal to the surviving spouse, except
that an election may be made by:

(A) The guardian of the property of an infant spouse, when so
authorized by the surrogate having jurisdiction of the decedent's
estate.

(B) The committee of an incompetent spouse, when so authorized by the
supreme court.

(C) The conservator of conservatee spouse, when so authorized by the
supreme court.

(5) Any question arising as to the right of election shall be
determined by the surrogate's court having jurisdiction of the
decedent's estate in a proceeding brought for that purpose on notice to
all interested persons in such manner as the court may direct, or in a
proceeding for the judicial settlement of the accounts of the personal
representative.

(6) Upon application by a surviving spouse who has made an election
under this section, the surrogate may make an order cancelling such
election, provided that no adverse rights have intervened and no
prejudice is shown to creditors of such spouse or other persons
interested in the estate. Such application shall be made on notice to
such persons and in such manner as the court may direct. A certified
copy of such order shall be indexed and recorded in the same manner as a
notice of pendency of an action in the office of the clerk of the county
in which any real property of the decedent is situated.

(7) The right of election granted by this section is not available to
the spouse of a decedent who was not domiciled in this state at the time
of death, unless such decedent elects, under paragraph (h) of 3-5.1, to
have the disposition of his property situated in this state governed by
the laws of this state.

(8) The decedent's estate shall include all property of the decedent,
wherever situated.

(9) An election made by the surviving spouse under this section is in
lieu of any right of dower to which such spouse may be entitled.

(e) Procedure for exercise of right of election.

(1) An election under this section must be made within six months from
the date of issuance of letters testamentary or of administration, as
the case may be. Written notice of such election shall be served upon
any personal representative in the manner herein provided, or upon a
person named as executor in a will on file in the surrogate's court in a
case where such will has not yet been admitted to probate, and the
original thereof shall be filed and recorded, with proof of service, in
the surrogate's court in which such letters were issued within six
months from the date of the issuance of letters. Such notice may be
served by mailing a copy thereof, addressed to any personal
representative, or to the nominated executor, as the case may be, at the
place of residence stated in the designation required by SCPA 708 or in
such other manner as the surrogate may direct.

(2) The time to make such election may be extended before its
expiration by an order of the surrogate's court from which such letters
issued for a further period not exceeding six months upon any one
application. If a spouse defaults in filing such election within six
months from the date of issuance of such letters, the surrogate's court
may relieve the spouse from such default and authorize the making of an
election within the period fixed by the order, provided that no decree
settling the account of the personal representative has been made and
that twelve months have not elapsed since the issuance of letters. An
application for relief from a default and for an extension of time to
elect shall be made upon a petition showing reasonable cause and on
notice to such persons and in such manner as the surrogate may direct. A
certified copy of such order shall be indexed and recorded in the same
manner as a notice of pendency of an action in the office of the clerk
of each county in which real property of the decedent is situated.

(3) The time limited in this paragraph for making an election is
exclusive and shall not be suspended or otherwise affected by any
provision of law, except that the surrogate may, in his discretion,
permit an election to be made in behalf of an infant or incompetent
spouse at any time up to, but not later than, the entry of the decree of
the first judicial account of the permanent representative of the
estate, made more than seven months after the issuance of letters.

(f) Waiver or release of right of election.

(1) A spouse, during the lifetime of the other, may waive or release a
right of election, granted by this section, against a particular or any
last will or a testamentary substitute, as described in subparagraph (b)
(1), made by the other spouse. A waiver or release of all rights in the
estate of the other spouse is a waiver or release of a right of election
against any such last will or testamentary provision.

(2) To be effective under this section, a waiver or release must be in
writing and subscribed by the maker thereof, and acknowledged or proved
in the manner required by the laws of this state for the recording of a
conveyance of real property.

(3) Such a waiver or release is effective, in accordance with its
terms, whether:

(A) Executed before or after the marriage of the spouses.

(B) Executed before, on or after September first, nineteen hundred
sixty-six.

(C) Unilateral in form, executed only by the maker thereof, or
bilateral in form, executed by both spouses.

(D) Executed with or without consideration.

(E) Absolute or conditional.