N.Y. Surrogate's Court Procedure Act § 1421: Election by surviving spouse 1

§ 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

fiduciary.

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

otherwise.