N.Y. Estates, Powers & Trusts Law § 5-1.1: Right of election by surviving spouse

§ 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.