§ 5-1.1 — Right of election by surviving spouse

New York § 5-1.1

• Jurisdiction: New York
• Law EPT: Estates, Powers & Trusts
• Part 1: Rights of Surviving Spouse
• Art. 5: Family Rights

Text

§ 5-1.1 Right of election by surviving spouse\n (a) Election by surviving spouse against will executed after August\nthirty-first, nineteen hundred thirty and prior to September first,\nnineteen hundred sixty-six.\n (1) Where a testator executes a will after August thirty-first,\nnineteen hundred thirty but prior to September first, nineteen hundred\nsixty-six, and is survived by a spouse, a personal right of election is\ngiven to the surviving spouse to take a share of the decedent's estate,\nsubject to the following:\n (A) For the purposes of this section, the elective share of the\nsurviving spouse is one-third of the net estate if the decedent is\nsurvived by one or more issue and, in all other cases, one-half of such\nnet estate. In computing the net estate, debts, administration and\nreasonable funeral expenses shall be deducted but all estate taxes shall\nbe disregarded, except that nothing contained herein relieves the\nsurviving spouse from contributing to all such taxes the amounts\napportioned against him under 2-1.8.\n (B) Where the elective share is over twenty-five hundred dollars and\nthe testator has made a testamentary disposition in trust of an amount\nequal to or greater than the elective share, with income therefrom\npayable to the surviving spouse for life, the surviving spouse has the\nlimited right to elect to take the sum of twenty-five hundred dollars\nabsolutely, which shall be deducted from the principal of such trust and\nthe terms of the will remain otherwise effective.\n (C) Where the elective share of the surviving spouse does not exceed\ntwenty-five hundred dollars, the surviving spouse has the right to elect\nto take his elective share absolutely, which shall be in lieu of any\nprovision for his benefit in the will.\n (D) Where the will contains an absolute disposition to the surviving\nspouse of or in excess of the sum of twenty-five hundred dollars and\nalso a disposition in trust with income payable to such spouse for life\nof an amount equal to or greater than the difference between the\nabsolute disposition and his elective share, the surviving spouse has no\nright of election.\n (E) Where the will contains an absolute disposition to the surviving\nspouse of an amount less than the sum of twenty-five hundred dollars and\nalso a disposition in trust with income payable to such spouse for life\nof an amount equal to or greater than the difference between the\nabsolute disposition and his elective share, the surviving spouse has\nthe limited right to elect to take the sum of twenty-five hundred\ndollars, inclusive of the amount of such absolute disposition, and the\ndifference between such disposition and the sum of twenty-five hundred\ndollars shall be deducted from the principal of such trust and the terms\nof the will remain otherwise effective.\n (F) Where the aggregate of the provisions in the will for the\nsurviving spouse, including the principal of a trust, an absolute\ndisposition or any other kind of testamentary disposition is less than\nthe elective share, the surviving spouse has the limited right to elect\nto take the difference between such aggregate and the amount of the\nelective share, and the terms of the will remain otherwise effective. In\nevery estate, the surviving spouse has the limited right to withdraw the\nsum of twenty-five hundred dollars if the elective share is equal to or\ngreater than that amount. Such sum, however, is inclusive of any\nabsolute disposition, whether general or specific. Where a trust is\ncreated for the life of the surviving spouse, such sum of twenty-five\nhundred dollars or any lesser amount necessary to make up that sum is\npayable from the principal of such trust.\n (G) The provisions of this paragraph with respect to trusts with\nincome payable for the life of the surviving spouse likewise apply to a\nlegal life estate, to an annuity for life or to any other disposition in\nthe will by which income is payable for the life of the surviving\nspouse. In computing the value of the dispositions in the will, the\ncapital value of the fund or other property producing the income shall\nbe taken and not the value of the life estate.\n (H) The grant of authority in a will to a fiduciary or his successor\n(i) to act without bond, (ii) to name his successor to act without bond,\n(iii) to sell assets of the estate upon terms fixed by him, (iv) to\ninvest the funds of the estate in other than legal investments, (v) to\nretain in the assets of the estate investments or property owned by the\ntestator in his lifetime, (vi) to make distribution in kind, (vii) to\nmake a binding and conclusive valuation of assets for the purpose of\ntheir distribution, (viii) to allocate assets either outright or in\ntrust for the life of a surviving spouse or (ix) to conduct the affairs\nof the estate with partial or total exoneration from the legal\nresponsibility of a fiduciary, shall not, either singly or in the\naggregate, give the surviving spouse an absolute right to take his\nelective share; but the surrogate's court having jurisdiction of the\nestate, notwithstanding the terms of the will, may, in its discretion,\nin an appropriate proceeding by the surviving spouse or upon an\naccounting, direct and enforce for the protection of the surviving\nspouse an equitable distribution, allocation or valuation of the assets,\nenforce the liability of a fiduciary under the law and make such other\ndirections, consistent with the provisions and purposes of this\nparagraph, as it may consider necessary for the protection of the\nsurviving spouse.\n (b) Inter vivos dispositions treated as testamentary substitutes for\nthe purpose of election by surviving spouse.\n (1) Where a person dies after August thirty-first, nineteen hundred\nsixty-six and is survived by a spouse who exercises a right of election\nunder paragraph (c), the following transactions effected by such\ndecedent at any time after the date of the marriage and after August\nthirty-first, nineteen hundred sixty-six, whether benefiting the\nsurviving spouse or any other person, shall be treated as testamentary\nsubstitutes and the capital value thereof, as of the decedent's death,\nincluded in the net estate subject to the surviving spouse's elective\nright:\n (A) Gifts causa mortis.\n (B) Money deposited, after August thirty-first, nineteen hundred\nsixty-six, together with all dividends credited thereon, in a savings\naccount in the name of the decedent in trust for another person, with a\nbanking organization, savings and loan association, foreign banking\ncorporation or organization or bank or savings and loan association\norganized under the laws of the United States, and remaining on deposit\nat the date of the decedent's death.\n (C) Money deposited, after August thirty-first, nineteen hundred\nsixty-six, together with all dividends credited thereon, in the name of\nthe decedent and another person and payable on death, pursuant to the\nterms of the deposit or by operation of law, to the survivor, with a\nbanking organization, savings and loan association, foreign banking\ncorporation or organization or bank or savings and loan association\norganized under the laws of the United States, and remaining on deposit\nat the date of the decedent's death.\n (D) Any disposition of property made by the decedent after August\nthirty-first, nineteen hundred sixty-six whereby property is held, at\nthe date of his death, by the decedent and another person as joint\ntenants with a right of survivorship or as tenants by the entirety.\n (E) Any disposition of property made by the decedent after August\nthirty-first, nineteen hundred sixty-six, in trust or otherwise, to the\nextent that the decedent at the date of his death retained, either alone\nor in conjunction with another person, by the express provisions of the\ndisposing instrument, a power to revoke such disposition or a power to\nconsume, invade or dispose of the principal thereof. The provisions of\nthis paragraph shall not affect the right of any income beneficiary to\nthe income undistributed or accrued at the date of death.\n (2) Nothing in this paragraph shall affect, impair or defeat the right\nof any person entitled to receive (A) payment in money, securities or\nother property under a thrift, savings, pension, retirement, death\nbenefit, stock bonus or profit-sharing plan, system or trust, (B) money\npayable by an insurance company or a savings bank authorized to conduct\nthe business of life insurance under an annuity or pure endowment\ncontract, a policy of life, group life, industrial life or accident and\nhealth insurance or a contract by such insurer relating to the payment\nof proceeds or avails thereof or (C) payment of any United States\nsavings bond payable to a designated person, and such transactions are\nnot testamentary substitutes within the meaning of this paragraph.\n (3) Transactions described in subparagraphs (C) or (D) shall be\ntreated as testamentary substitutes in the proportion that the funds on\ndeposit were the property of the decedent immediately before the deposit\nor the consideration for the property held as joint tenants or as\ntenants by the entirety was furnished by the decedent. The surviving\nspouse shall have the burden of establishing the proportion of the\ndecedent's contribution. Where the other party to a transaction\ndescribed in subparagraphs (C) or (D) is a surviving spouse, such spouse\nshall have the burden of establishing the proportion of his\ncontribution, if any. For the purpose of this subparagraph, the\nsurrogate's court may accept such evidence as is relevant and competent,\nwhether or not the person offering such evidence would otherwise be\ncompetent to testify.\n (4) The provisions of this paragraph shall not prevent a corporation\nor other person from paying or transferring any funds or property to a\nperson otherwise entitled thereto, unless there has been served\npersonally upon such corporation or other person a certified copy of an\norder enjoining such payment or transfer made by the surrogate's court\nhaving jurisdiction of the decedent's estate or by another court of\ncompetent jurisdiction. Such order may be made, on notice to such\npersons and in such manner as the court may direct, upon application of\nthe surviving spouse or any other interested party and on proof that the\nsurviving spouse has exercised his right of election under paragraph\n(c). Service of a certified copy of such order on the corporation or\nother person holding such fund or property shall be a defense to it,\nduring the effective period of the order, in any action or proceeding\nbrought against it which involves such fund or property.\n (5) This paragraph shall not impair or defeat the rights of creditors\nof the decedent with respect to any matter as to which any such creditor\nhas rights.\n (6) In case of a conflict between this paragraph and any other\nprovision of law affecting the transactions described in subparagraph\n(1), this paragraph controls.\n (c) Election by surviving spouse against wills executed and\ntestamentary provisions made after August thirty-first, nineteen hundred\nsixty-six; election where decedent dies intestate as to all or any part\nof his estate.\n (1) Where, after August thirty-first, nineteen hundred sixty-six, a\ntestator executes a will disposing of his entire estate, and is survived\nby a spouse, a personal right of election is given to the surviving\nspouse to take a share of the decedent's estate, subject to the\nfollowing:\n (A) For the purposes of this paragraph, the decedent's estate includes\nthe capital value, as of the decedent's death, of any property described\nin subparagraph (b) (1).\n (B) The elective share, as used in this paragraph, is one-third of the\nnet estate if the decedent is survived by one or more issue and, in all\nother cases, one-half of such net estate. In computing the net estate,\ndebts, administration and reasonable funeral expenses shall be deducted\nbut all estate taxes shall be disregarded, except that nothing contained\nherein relieves the surviving spouse from contributing to all such taxes\nthe amounts apportioned against him under 2-1.8.\n (C) The term "testamentary provision", as used in this paragraph,\nincludes, in addition to dispositions made by the decedent's will, any\ntransaction described as a testamentary substitute in subparagraph (b)\n(1).\n (D) Where the elective share is over ten thousand dollars and the\ndecedent has by testamentary provision created a trust in an amount\nequal to or greater than the elective share, with income therefrom\npayable to the surviving spouse for life, the surviving spouse has the\nlimited right to elect to take the sum of ten thousand dollars\nabsolutely, which shall be deducted from the principal of such trust and\nthe terms of the instrument making the testamentary provision remain\notherwise effective.\n (E) Where the elective share of the surviving spouse does not exceed\nten thousand dollars, the surviving spouse has the right to take the\nelective share absolutely, in lieu of any testamentary provision for his\nbenefit.\n (F) Where an absolute testamentary provision is made for the surviving\nspouse of or in excess of ten thousand dollars, and also a provision in\ntrust with income payable to such spouse for life of an amount equal to\nor greater than the difference between such absolute testamentary\nprovision and his elective share, the surviving spouse has no right of\nelection.\n (G) Where an absolute testamentary provision is made for the surviving\nspouse in an amount less than ten thousand dollars, and also a\ntestamentary provision in trust with income payable to such spouse for\nlife of an amount equal to or greater than the difference between such\nabsolute testamentary provision and his elective share, the surviving\nspouse has the limited right to take the sum of ten thousand dollars,\ninclusive of the amount of such absolute testamentary provision, and the\ndifference between such absolute testamentary provision and the sum of\nten thousand dollars shall be deducted from the principal of the trust\nand the terms of the instrument making the testamentary provision remain\notherwise effective.\n (H) Where the aggregate of the testamentary provisions for the\nsurviving spouse, including the principal of a trust, an absolute\ntestamentary provision or any other kind of testamentary provision, is\nless than the elective share, the surviving spouse has the limited right\nto elect to take the difference between such aggregate and the amount of\nthe elective share, and the terms of the instrument making such\ntestamentary provisions remain otherwise effective. In every estate, the\nsurviving spouse has the limited right to withdraw the sum of ten\nthousand dollars if the elective share is equal to or greater than that\namount. Such sum, however, is inclusive of any absolute testamentary\nprovision. Where a trust is created with income payable to the surviving\nspouse for life, such sum of ten thousand dollars or any lesser amount\nnecessary to make up that sum is payable from the principal of such\ntrust.\n (I) The provisions of this paragraph with respect to trusts for the\nlife of the surviving spouse also apply to a legal life estate, to an\nannuity for the life of the surviving spouse, to an annuity trust and a\nunitrust as provided in subparagraph (K) of paragraph one of this\nsubdivision or to any other testamentary provision by which income is\npayable for the life of the surviving spouse. In computing the value of\nthe testamentary provisions the capital value of the fund or other\nproperty producing the income shall be taken and not the value of the\nlife estate.\n (J) The surviving spouse is entitled to take the capital value (in no\ncase to exceed such spouse's elective share) of the fund or other\nproperty producing the income whenever any instrument making a\ntestamentary provision of income for his life authorizes:\n (i) The reduction of any trust, legal life estate or annuity by\ninvasion of the principal for another person.\n (ii) The termination of any trust, legal life estate or annuity prior\nto the death of the surviving spouse by payment of the principal thereof\nto another person.\n (iii) The fiduciary to pay or apply to the use of the surviving spouse\nless than substantially all of the net income from any trust, legal life\nestate or annuity.\n If an instrument making any such testamentary provision contains\ngrants of authority to a fiduciary other than the foregoing, the\nsurrogate's court having jurisdiction of the decedent's estate may, in\nits discretion, in an appropriate proceeding by the surviving spouse or\nupon an accounting, direct and enforce for the protection of the\nsurviving spouse an equitable distribution, allocation or valuation of\nthe assets, enjoin any fiduciary, whether appointed by will or\notherwise, from exercising any power, statutory or otherwise, which\nwould be prejudicial to the interests of the surviving spouse, enforce\nthe liability of a fiduciary under the law and make such other\ndirections, consistent with the provisions and purposes of this\nparagraph, as it may consider necessary for the protection of the\nsurviving spouse.\n (K) If any testamentary provision for the surviving spouse provides\nthat such spouse shall receive, for life and not less often than\nannually, from a charitable remainder annuity trust, as defined in\nparagraph one of subdivision (d) of section six hundred sixty-four of\nthe United States Internal Revenue Code, a sum certain (which is not\nless than five percent of the initial net fair market value of all\nproperty placed in such trust) or from a charitable remainder unitrust,\nas defined in paragraph two of subdivision (d) of section six hundred\nsixty-four of such code, a fixed percentage (which is not less than five\npercent) of the net fair market value of its assets, valued annually,\nsuch testamentary provisions shall satisfy the provisions of this\nparagraph with respect to trusts with income payable to the surviving\nspouse for life.\n (2) Where, after August thirty-first, nineteen hundred sixty-six, a\nperson dies intestate as to all or any part of his estate, and, in the\ncase of part intestacy, executes a will after such date, and is survived\nby a spouse, a personal right of election is given to the surviving\nspouse to take a share of the testamentary provisions made by the\ndecedent, as such provisions are defined in subparagraph (1) (C),\nsubject to the following:\n (A) The share of the testamentary provisions to which the surviving\nspouse is entitled hereunder is his elective share, as defined in\nsubparagraphs (1) (A) and (B), reduced by the capital value of all\nproperty passing to such spouse (i) in intestacy under 4-1.1, (ii) by\ntestamentary substitute as described in subparagraph (b) (1) and (iii)\nby disposition under the decedent's last will.\n (B) The satisfaction of such elective share shall not reduce the\nintestate share of any other distributee of the decedent.\n (C) Whenever a testamentary provision for the surviving spouse takes\nthe form of income payable for his life:\n (i) The surviving spouse has the limited right to elect to take,\nabsolutely, the sum of ten thousand dollars or the share to which he is\nentitled hereunder, whichever is less. Such sum, however, is inclusive\nof any absolute testamentary provision, as described in subparagraph (1)\n(C), and any amount to which the surviving spouse is entitled in\nintestacy under 4-1.1, and is payable from the principal of any trust,\nlegal life estate or annuity created by such testamentary provision, the\nterms of which remain otherwise effective.\n (ii) The provisions of subparagraph (1) (J) apply.\n (d) General provisions governing right of election.\n (1) Where an election has been made under this section, the will or\nother instrument making a testamentary provision, as the case may be, is\nvalid as to the residue after the share to which the surviving spouse is\nentitled has been deducted, and the terms of such will or instrument\nremain otherwise effective so far as possible.\n (2) Whenever a will creates a trust, legal life estate or annuity for\nthe benefit of the surviving spouse for life, and such will commands,\ndirects, authorizes or permits the fiduciary to allocate, apportion or\ncharge receipts or expenses to principal or income in such manner as\nwill or might deprive the spouse of income as defined in section 11-2.1\nof this act or in any other law applicable to such trust, legal life\nestate or annuity, and where such trust, legal life estate or annuity,\nbut for such will provision would satisfy the elective share of the\nspouse in whole or in part, such command, direction, authorization or\npermission shall not of itself give the surviving spouse an absolute\nright to take his elective share. The surrogate's court having\njurisdiction of the decedent's estate may, in any appropriate\nproceeding, direct and enforce for the protection of the surviving\nspouse an allocation, apportionment or charge of all receipts and\nexpenses in accordance with applicable legal or equitable principles so\nas to assure such surviving spouse of all or substantially all of the\nincome of such trust, legal life estate or annuity consistent with the\npurposes and provisions of this section. The court may enjoin any\nfiduciary from exercising any power; authority or permission or doing\nany act which would be prejudicial to the rights and interests of such\nsurviving spouse under this section. The court may enforce the\nliability of a fiduciary under the law and make such directions,\nconsistent with the purposes and provisions of this section, as it may\nconsider necessary for the protection of the surviving spouse.\n (3) Except as otherwise expressly provided in the will or other\ninstrument making a testamentary provision, ratable contribution to the\nshare to which the surviving spouse is entitled shall be made by the\nbeneficiaries (including the recipients of any such testamentary\nprovision), other than the surviving spouse, under:\n (A) In the case of an election under paragraph (a), the decedent's\nwill.\n (B) In the case of an election under paragraph (c), the decedent's\nwill and other instruments making testamentary provisions.\n (4) The right of election is personal to the surviving spouse, except\nthat an election may be made by:\n (A) The guardian of the property of an infant spouse, when so\nauthorized by the surrogate having jurisdiction of the decedent's\nestate.\n (B) The committee of an incompetent spouse, when so authorized by the\nsupreme court.\n (C) The conservator of conservatee spouse, when so authorized by the\nsupreme court.\n (5) Any question arising as to the right of election shall be\ndetermined by the surrogate's court having jurisdiction of the\ndecedent's estate in a proceeding brought for that purpose on notice to\nall interested persons in such manner as the court may direct, or in a\nproceeding for the judicial settlement of the accounts of the personal\nrepresentative.\n (6) Upon application by a surviving spouse who has made an election\nunder this section, the surrogate may make an order cancelling such\nelection, provided that no adverse rights have intervened and no\nprejudice is shown to creditors of such spouse or other persons\ninterested in the estate. Such application shall be made on notice to\nsuch persons and in such manner as the court may direct. A certified\ncopy of such order shall be indexed and recorded in the same manner as a\nnotice of pendency of an action in the office of the clerk of the county\nin which any real property of the decedent is situated.\n (7) The right of election granted by this section is not available to\nthe spouse of a decedent who was not domiciled in this state at the time\nof death, unless such decedent elects, under paragraph (h) of 3-5.1, to\nhave the disposition of his property situated in this state governed by\nthe laws of this state.\n (8) The decedent's estate shall include all property of the decedent,\nwherever situated.\n (9) An election made by the surviving spouse under this section is in\nlieu of any right of dower to which such spouse may be entitled.\n (e) Procedure for exercise of right of election.\n (1) An election under this section must be made within six months from\nthe date of issuance of letters testamentary or of administration, as\nthe case may be. Written notice of such election shall be served upon\nany personal representative in the manner herein provided, or upon a\nperson named as executor in a will on file in the surrogate's court in a\ncase where such will has not yet been admitted to probate, and the\noriginal thereof shall be filed and recorded, with proof of service, in\nthe surrogate's court in which such letters were issued within six\nmonths from the date of the issuance of letters. Such notice may be\nserved by mailing a copy thereof, addressed to any personal\nrepresentative, or to the nominated executor, as the case may be, at the\nplace of residence stated in the designation required by SCPA 708 or in\nsuch other manner as the surrogate may direct.\n (2) The time to make such election may be extended before its\nexpiration by an order of the surrogate's court from which such letters\nissued for a further period not exceeding six months upon any one\napplication. If a spouse defaults in filing such election within six\nmonths from the date of issuance of such letters, the surrogate's court\nmay relieve the spouse from such default and authorize the making of an\nelection within the period fixed by the order, provided that no decree\nsettling the account of the personal representative has been made and\nthat twelve months have not elapsed since the issuance of letters. An\napplication for relief from a default and for an extension of time to\nelect shall be made upon a petition showing reasonable cause and on\nnotice to such persons and in such manner as the surrogate may direct. A\ncertified copy of such order shall be indexed and recorded in the same\nmanner as a notice of pendency of an action in the office of the clerk\nof each county in which real property of the decedent is situated.\n (3) The time limited in this paragraph for making an election is\nexclusive and shall not be suspended or otherwise affected by any\nprovision of law, except that the surrogate may, in his discretion,\npermit an election to be made in behalf of an infant or incompetent\nspouse at any time up to, but not later than, the entry of the decree of\nthe first judicial account of the permanent representative of the\nestate, made more than seven months after the issuance of letters.\n (f) Waiver or release of right of election.\n (1) A spouse, during the lifetime of the other, may waive or release a\nright of election, granted by this section, against a particular or any\nlast will or a testamentary substitute, as described in subparagraph (b)\n(1), made by the other spouse. A waiver or release of all rights in the\nestate of the other spouse is a waiver or release of a right of election\nagainst any such last will or testamentary provision.\n (2) To be effective under this section, a waiver or release must be in\nwriting and subscribed by the maker thereof, and acknowledged or proved\nin the manner required by the laws of this state for the recording of a\nconveyance of real property.\n (3) Such a waiver or release is effective, in accordance with its\nterms, whether:\n (A) Executed before or after the marriage of the spouses.\n (B) Executed before, on or after September first, nineteen hundred\nsixty-six.\n (C) Unilateral in form, executed only by the maker thereof, or\nbilateral in form, executed by both spouses.\n (D) Executed with or without consideration.\n (E) Absolute or conditional.\n