N.Y. Estates, Powers & Trusts Law § 5-3.1: Exemption for benefit of family

§ 5-3.1 Exemption for benefit of family

(a) If a person dies, leaving a surviving spouse or children under the

age of twenty-one years, the following items of property are not assets

of the estate but vest in, and shall be set off to such surviving

spouse, unless disqualified, under 5-1.2, from taking an elective or

distributive share of the decedent's estate. In case there is no

surviving spouse or such spouse, if surviving, is disqualified, such

items of property vest in, and shall be set off to the decedent's

children under the age of twenty-one years:

(1) All housekeeping utensils, musical instruments, sewing machine,

jewelry unless disposed of in the will, clothing of the decedent,

household furniture and appliances, electronic and photographic devices,

and fuel for personal use, not exceeding in aggregate value twenty

thousand dollars. This subparagraph shall not include items used

exclusively for business purposes.

(2) The family bible or other religious books, family pictures, books,

computer tapes, discs and software, DVDs, CDs, audio tapes, record

albums, and other electronic storage devices, including but not limited

to videotapes, used by such family, not exceeding in value two thousand

five hundred dollars.

(3) Domestic and farm animals with their necessary food for sixty

days, farm machinery, one tractor and one lawn tractor, not exceeding in

aggregate value twenty thousand dollars.

(4) The surviving spouse or decedent's children may acquire items

referred to in subparagraphs (1), (2) and (3) of this paragraph, in

excess of the values set forth in such subparagraphs by payment to the

estate of the amount by which the value of the items acquired exceeds

the amounts set forth in such subparagraphs. If any item so acquired by

the spouse or children of the decedent was a specific legacy in

decedent's will, the payment to the estate for such item shall vest in

the specific legatee.

(5) One motor vehicle not exceeding in value twenty-five thousand

dollars. In the alternative, if the decedent shall have been the owner

of one or more motor vehicles each of which exceed twenty-five thousand

dollars in value, the surviving spouse or decedent's children may

acquire one such motor vehicle from the estate, regardless of the fact

that the decedent may also have been the owner of another motor vehicle

of lesser value than twenty-five thousand dollars, by payment to the

estate of the amount by which the value of the motor vehicle exceeds

twenty-five thousand dollars; in lieu of receiving such motor vehicle,

the surviving spouse or children may elect to receive in cash an amount

equal to the value of the motor vehicle, not to exceed twenty-five

thousand dollars. If any motor vehicle so acquired by the spouse or

children of the decedent was a specific legacy in decedent's will, the

payment to the estate of the amount by which the value of the motor

vehicle exceeds twenty-five thousand dollars shall vest in the specific

legatee.

(6) Money including but not limited to cash, checking, savings and

money market accounts, certificates of deposit or equivalents thereof,

and marketable securities, not exceeding in value twenty-five thousand

dollars, reduced by the excess value, if any, of acquired items referred

to in subparagraphs (1), (2), (3) and (5) of this paragraph. However,

where assets are insufficient to pay the reasonable funeral expenses of

the decedent, the personal representative must first apply such money to

defray any deficiency in such expenses.

(7) Any set off to a child under the age of twenty-one years not

exceeding ten thousand dollars shall be covered by the provisions of

section twenty-two hundred twenty of the surrogate's court procedure act

as if the child were a beneficiary of the estate. Any excess amounts

shall be governed by the guardianship statute, if applicable.

(8) The court shall have the authority to issue such documentation as

necessary to effectuate the transfer of any items under this section.

(b) No allowance shall be made in money or other property if the items

of property described in subparagraph (1), (2), (3) or (5) of paragraph

(a) are not in existence when the decedent dies.

(c) The items of property, set off as provided in paragraph (a),

shall, at least to the extent thereof, be deemed reasonably required for

the support of the surviving spouse or children under the age of

twenty-one years of the decedent during the settlement of the estate.

(d) As used in this section, the term "value" shall refer to the fair

market value of each item, reduced by all outstanding security interests

or other encumbrances affecting the decedent's ownership of said item.