New York: Spousal Elective Share Requirements

Requirements one by one

Governing law and eligible spouse

EPTL § 5-1.1-A calls the election a personal right of the surviving
spouse. Section 5-1.2 determines who counts as a surviving spouse and lists the
disqualifying circumstances, including a qualifying divorce or separation
judgment, a void marriage, abandonment continuing until death, and a failure to
support despite ability. The pending S4999/A7069 pair would add certain
post-death annulment and nullity judgments to that list; it is not current law.

For an infant or incompetent spouse, § 5-1.1-A(d)(3) gives the surrogate
discretion to permit an election on the spouse's behalf until the first judicial
account decree described there. The statute does not create a general agent or
attorney-in-fact route.

Share amount and estate base

The amount is the greater of two alternatives: $50,000 (or the full capital
value if the net estate is below $50,000), or one-third of the net estate.
There is no marriage-duration schedule.

The net estate is broader than probate property. Paragraph (b)(1) treats listed
inter vivos transfers as testamentary substitutes at date-of-death capital
value. These include specified deathbed and final-year gifts, Totten and
payable-on-death accounts, joint and survivorship property, retained-benefit or
revocable transfers, retirement and deferred-compensation benefits, property
subject to a general power of appointment, and securities transferred to a
beneficiary under EPTL article 13, part 4.

Deductions, exclusions, and valuation

The statute deducts debts, administration expenses, and reasonable funeral
expenses from the net estate, but disregards estate taxes in that calculation.
It then preserves the spouse's separate obligation to contribute taxes
apportioned under EPTL 2-1.8.

The substitute rules have their own boundaries. Certain irrevocable transfers
count only if made after marriage; final-year gifts exclude qualifying federal
gift-tax-exclusion amounts; and joint accounts and survivorship property are
generally included in proportion to the decedent's contribution. When the
surviving spouse is the other party to that joint transaction, the statute
conclusively presumes the decedent's contribution was one-half.

Deadline, extensions, and filing

Both ordinary limits must be met: the election is due within six months after
letters testamentary or administration issue, and in no event later than
two years after death. Before the period expires, the Surrogate's Court may
grant a further period of no more than six months on any one application.

Default relief has separate conditions. The court may permit a late election
before an account-settling decree when the initial application is within 12
months after letters and two years after death; the statute also gives the court
discretion, for good cause, to extend beyond two years. The petition must show
reasonable cause and be made on notice as the surrogate directs. Section
5-1.1-A states no withdrawal procedure.

The election itself is made by written notice. Serve a personal
representative or, if a will is on file but not admitted, the nominated executor.
File and record the original with proof of service in the Surrogate's Court that
issued the letters. The statute permits mailing to its specified address or
another method directed by the surrogate; it does not require the election
notice itself to be notarized.

Waiver and payment

During the other spouse's lifetime, a spouse may waive all or part of the right
against a will or testamentary substitute. The waiver must be written,
subscribed, and acknowledged or proved in the manner required to record a real-
property conveyance. It may be signed before or after marriage, unilaterally or
bilaterally, with or without consideration, and absolutely or conditionally.

Property passing absolutely to the spouse—by intestacy, will, or testamentary
substitute—is credited against the elective share. Unless the governing
instrument says otherwise, the remaining amount is funded by ratable
contribution from beneficiaries, distributees, and testamentary-substitute
recipients other than the spouse. A contributor may use cash, the received
property, or both.

Effect of the election

Unless the decedent provided otherwise, an election treats the spouse as having
died immediately before the decedent for interests that pass other than
absolutely, including interests in a trust or trust equivalent. After the
spouse's share is deducted, the will and other testamentary instruments remain
valid as to the residue and otherwise remain effective so far as possible.

What trips people up

• The deadline is not simply two years. Six months after letters can arrive
  first, and both clocks matter.
• The base is not the probate inventory. Listed joint, beneficiary-designated,
  retained-interest, retirement, and recent-transfer assets can be included as
  testamentary substitutes.
• A waiver and an election use different form rules. The waiver requires
  deed-style acknowledgment or proof. Paragraph (d)(1) requires written notice,
  service, filing, and recording for the election, but does not add notarization.
• The $50,000 amount is a floor, not an add-on. The spouse receives the
  greater alternative, not $50,000 plus one-third.

Common questions

Does life insurance automatically enter the New York net estate? Life-
insurance proceeds are not named in § 5-1.1-A(b)(1)'s current list of
testamentary substitutes. Other rights or arrangements must be classified under
the actual listed clauses rather than assumed included because they are
nonprobate.

Can the court extend the election beyond two years after death? Yes, but only
through the statute's relief process. Paragraph (d)(2) expressly gives the court
discretion to extend beyond two years for good cause; that is not an automatic
grace period.

What happens to property already passing outright to the spouse? Its capital
value reduces the gross elective-share amount. The remaining figure is the net
elective share funded through contribution.

Statutes and sources

• N.Y. EPTL § 5-1.1-A(a) — personal right, amount, deductions, spouse credits,
  and effect on non-absolute interests. Official section
  (accessed 2026-08-02).
• N.Y. EPTL § 5-1.1-A(b) — testamentary substitutes, exclusions, valuation,
  and joint-property contribution proportions. Official section
  (accessed 2026-08-02).
• N.Y. EPTL § 5-1.1-A(c) — continued effect of instruments and ratable
  contribution. Official section
  (accessed 2026-08-02).
• N.Y. EPTL § 5-1.1-A(d) — deadline, extensions, infant/incompetent-spouse
  rule, service, filing, and recording. Official section
  (accessed 2026-08-02).
• N.Y. EPTL § 5-1.1-A(e) — waiver timing and execution. Official section
  (accessed 2026-08-02).
• N.Y. EPTL § 5-1.2 — current surviving-spouse disqualifications. Official section
  (accessed 2026-08-02).
• NY S4999/A7069 — proposed post-death annulment and nullity
  disqualification. Official Assembly action
  tracker
  (checked 2026-08-08).