Legal Question in Wills and Trusts in New York

Re: Spousal inheritence rights

The greater of $50,000 or one third of the estate.

For these purposes the estate includes almost all of the property owned by the decedent except life insurance.

Generally, the election must be made six months after an executor is appointed.

Re: Spousal inheritence rights

It is a little complicated. As a surviving spouse that was not included in a husband's will, you have a statutory right of election. The law as to a spouses right of election is found in NY EPTL section 5-1.1. The paragraphs that apply to your situation are as follows:

"(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."

Please note that this is only an abbreviated section of the statute. There are many other issues regarding a right of election that cannot be stated in such a brief reply.

Also, please note that the time period for you to give notice as to your right of election is fairly short. I would advise you to see a lawyer as soon as possible.

Mike.

Re: Spousal inheritence rights

Providing that you were living together as husband and wife, and not separated nor any marital dissolution proceedsing initiated, you have the statutory right to elect to take a marital share, rather than anything left to you under the Will, if that is less than the statutory marital share. This is covered by NY EPTL, Section 5-1.1. I suggest you read the law, which should be on-line at any New York legal website (try FINDLAW.COM) for the full provisions of the statute.