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This entry was published on 2014-09-22
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Election by surviving spouse 1
Surrogate's Court Procedure Act (SCP) CHAPTER 59-A, ARTICLE 14
§ 1421. Election by surviving spouse

1. Any person interested in obtaining a determination as to the
validity or effect of an election to take a share under EPTL 5-1.1 or
EPTL 5-1.1-A may present to the court in which the will was probated or
from which letters of administration were issued, a petition showing his
interest, the names and post-office addresses of the other persons
interested and the particular question concerning which he requests the
determination of the court.

2. If the application be entertained process shall issue to all
persons interested in the question to be presented to show cause why the
determination should not be made. On the return of process the court may
take proof and shall make such decree as justice requires.

3. The validity or effect of any such election may also be determined
in a proceeding for the judicial settlement of the accounts of a

4. For the purpose of determining the validity or effect of any
election made pursuant to EPTL 5-1.1 or EPTL 5-1.1-A, either under this
section or in a proceeding for the judicial settlement of the accounts
of the fiduciary, a person interested shall include any person who has
an interest in any of the transactions described in EPTL 5-1.1 or EPTL
5-1.1-A. Where any such person has an interest as trustee of an express
trust it shall be sufficient to name and serve the trustee.

5. Whenever it shall appear that a fund or property required to be
included in the net estate under EPTL 5-1.1 or EPTL 5-1.1-A has not come
into the possession of the fiduciary of the decedent as such, the court
shall fix the liability of any person who has any interest in the fund
or property or who has possession thereof, whether as trustee or