New York Spousal Right of Election Protects the Surviving Spouse

Can I be disinherited by my spouse in New York?

New York’s law is clear that your inheritance rights as a spouse are protected. If you have been partially or completely disinherited from your spouse’s Last Will & Testament, you are entitled to an elective share of the assets which is defined as the greater of $50,000.00 or one-third of the estate which includes assets known as testamentary substitutes. Examples of testamentary substitutes include jointly owned property; joint bank accounts; transfer on death designations; payable on death accounts, etc. The proceeds of life insurance policies are not considered testamentary substitutes for elective share calculations.

How do I protect my rights in my spouse’s estate?

You would need to file a spousal right of election and serve it on the fiduciary of the estate. You may file a right of election as long as you have not inherited assets that are at least equal to the elective share of the estate.

Is there a time limit (statute of limitations) for filing a spousal right of

election?

Yes. You must file your right of election within six months after an executor or administrator of an estate has been appointed.

Can my right of election be contested?

Sometimes, it becomes necessary to litigate to protect your right to an inheritance as a surviving spouse. The opposition may object to your right of election by claiming that your marriage was invalid, that you abandoned your spouse during the marriage or that you waived your right of election in a pre or post-nuptial agreement.