What You Need To Know About New York's Spousal Election


Losing a spouse is a difficult and emotional experience. Unfortunately, the legal process of settling the deceased's estate can be equally challenging, especially when it comes to the spousal election. In New York State, the spousal election is a legal option that a surviving spouse has to claim a portion of their deceased spouse's estate, even if the deceased spouse's will did not provide for them or left them less than what they were entitled to by law.

Here are some of the key points you should know about the spousal election in New York:

What is a spousal election?

A spousal election is a legal option that a surviving spouse has to claim a portion of their deceased spouse's estate. In New York State, a surviving spouse is entitled to a portion of the deceased spouse's estate, regardless of whether the deceased spouse left a will. If the deceased spouse's will left the surviving spouse with less than what they are entitled to under state law, the surviving spouse may make a spousal election to claim their rightful share.

How does the spousal election work?

The surviving spouse must make the spousal election within six months of the appointment of the executor or administrator of the deceased spouse's estate. The surviving spouse can choose to receive either the elective share amount (currently, the greater of $50,000 or one-third of the net estate) or the amount provided for them in the will, whichever is greater.

What assets are subject to the spousal election?

The spousal election applies only to assets that are part of the deceased spouse's probate estate. Non-probate assets that pass directly to a designated beneficiary or joint owner (i.e. payable or transfer on death accounts) are not subject to the spousal election.

How can a spouse prevent a spousal election?

A person can try to prevent their spouse from seeking a spousal election by creating a prenuptial or postnuptial agreement, disinheriting the spouse in the will, or transferring assets to others before death. However, it's important to note that these strategies may not always be effective, valid, or legally sound.

Why is it important to consult with an attorney about a Spousal Election?

The spousal election can be a complex and challenging legal process, and the laws governing it can vary by state. If you are considering making a spousal election or have concerns about how your assets will be distributed after your death, it's important to work with an attorney who is familiar with Trust & Estate Litigation, particularly litigation. An attorney can provide you with guidance on the spousal election and your respective rights upon the death of your spouse.

In conclusion, the spousal election can be a critical legal option for surviving spouses who want to claim their rightful share of their deceased spouse's estate. However, the process can be complicated, and it's important to consult with an attorney who can provide guidance on the spousal election and help you make a plan that meets your needs and protects your interests.

If you are going through similar issues and have questions, then contact us.

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