Legal Question in Wills and Trusts in New York

If they were married at the time of his death, then, in the absence of an agreement to the contrary, your mother is protected by statute. She is entitled to the first $50,000 in value and at least one half of the excess, and probably has first right to any pension death benefit..

New York, like most states, tries to prevent one from leaving his or her spouse completely out of the estate. New York�s statute says that a spouse must be awarded the greater of $50,000 or one third of the estate. That means that if the estate is worth $150,000 or less, the spouse will receive $50,000, and more than that if the estate is valued at greater than $150,000. This law has traditionally been known as the �widow�s right of election,� but has been modernized so that the statute is now gender-neutral, referring instead to the "surviving

spouse.� The current statute was enacted 20 years ago.

To exercise the spouse�s right to receive his or her �elective share,� a notice of election must be filed and served within six months of the time that the court appointed an executor (or, in cases in which there is no will, an administrator), but in any event within two years of the death of the spouse.

I believe that my colleague may have misread your question and, instead of outlining the law as to a surviving spouse's right of election, he instead recited the law as it relates to intestacy.

Good luck to you.