New York Exempt Property: What Surviving Spouses Can Claim

New York law lets a surviving spouse, or the decedent's children under 21 if there is no qualifying spouse, set aside certain family property before general creditors and other beneficiaries take anything. This protection comes from EPTL 5-3.1 and is often called the exempt property set-aside or the family exemption. The items pass outside the ordinary estate, up to a per-category dollar cap.

This guide is a focused look at that set-aside: what qualifies, who claims it, how it differs from the elective share, and how to raise it in Surrogate's Court. For the full picture of spousal protections, including the elective share and the intestate share, see the New York surviving spouse rights guide. It is not legal advice.

What Is New York Exempt Property (EPTL 5-3.1 Set-Aside)?

The exempt property set-aside is a statutory list of family items that do not pass through the estate the ordinary way. Under EPTL 5-3.1, once someone with priority claims these items, they are not treated as estate assets to the extent the statute applies. That means they are removed from the pool that pays creditors and are not distributed to other beneficiaries under the will or intestacy.

New York does not use a single lump-sum cap for the whole set-aside. Instead, each category of property has its own dollar limit. A qualifying family member can claim within each category, so the categories add together rather than sharing one ceiling. Because the exact wording, categories, and figures in the statute control a real case, confirm any number with Surrogate's Court or a New York probate attorney before you rely on it.

The set-aside is separate from the elective share and from the intestate share. A surviving spouse can claim the set-aside in addition to those rights, not instead of them.

What Qualifies

EPTL 5-3.1 sets aside these categories of family property, each subject to its own value cap:

A closer look at each category:

• Household and personal items, up to $20,000. This covers ordinary household furniture, appliances, and personal effects the family uses. Value is measured against the cap, so items above the limit are not automatically all included.
• Family books, media, and electronic storage items, up to $2,500. Family books, digital media, and electronic storage devices fall here, with their own separate limit.
• Domestic and farm animals with certain farm equipment, up to $20,000. Household and farm animals, along with tractors and related farm machinery, can be set aside up to this cap.
• One motor vehicle, up to $25,000. A single vehicle qualifies, valued up to $25,000. The New York DMV uses the same $25,000 one-vehicle family exemption rule for qualifying surviving spouse or minor child transfers. A vehicle worth more than the cap does not automatically pass under this rule, and any loan on the car stays attached to it.
• Money and marketable securities, up to $25,000. Cash and marketable securities can be set aside, but this category is reduced by excess value claimed in certain other categories. In other words, the money-and-securities cap absorbs overflow rather than sitting fully independent of the rest.

Because the money and securities amount is reduced by excess value in some other categories, the total a family actually receives depends on how the specific items are valued and classified. Ask Surrogate's Court or counsel to confirm how the reduction applies to a particular estate.

Who Can Claim It

EPTL 5-3.1 names a clear order of who may claim the set-aside:

• The surviving spouse, unless disqualified. A surviving spouse has first priority. To claim, the person must be legally married to the decedent at death and not disqualified. Conduct such as abandonment or a failure to support, when required, can disqualify a spouse under New York's Estates, Powers and Trusts Law, and a disqualified spouse loses the set-aside along with the other spousal rights.
• Children under age 21, if there is no qualifying surviving spouse. When there is no surviving spouse, or the spouse is disqualified, the set-aside passes to the decedent's children who are under age 21. This is a narrower group than heirs generally, because the exemption is aimed at younger dependents.

Adult children do not claim the set-aside when a qualifying spouse exists, and the exemption is not divided among general beneficiaries. It is a priority claim for the spouse first, then minor children.

How It Differs From the Elective Share

The set-aside and the elective share are two different tools, and it helps to keep them apart.

The elective share is a right to a minimum share of the whole net estate, the greater of $50,000 or one-third of the net estate, measured against a value that includes testamentary substitutes. A spouse uses it to fight disinheritance by a will that leaves too little. The exempt property set-aside is not a percentage of the estate at all. It is a fixed list of specific family items, each capped in dollars, that come off the top before the estate is divided.

A surviving spouse can claim both. The set-aside items pass first, and the elective share is then measured against what remains in the net estate. For the elective share rules, testamentary substitutes, and filing deadlines, see the New York surviving spouse rights guide.

Priority Over Creditors

The value of the set-aside is that it jumps ahead of most claims on the estate. To the extent EPTL 5-3.1 applies, the set-aside items are not treated as estate assets. They pass to the surviving spouse, or to children under 21, before general creditors and before other beneficiaries.

That priority is strong but not unlimited:

• Protected from most unsecured creditors. Credit card debt, medical bills, and personal loans generally cannot reach the set-aside items.
• Not free of a valid lien on the specific item. If the one motor vehicle carries a car loan, the lender's security interest stays with the car. The family member takes the vehicle subject to that loan. The same idea applies to any item that secures a debt.

Because the set-aside comes off before the estate pays creditors, raising it early matters. If the items are sold or distributed as ordinary estate assets first, recovering them is harder.

How to Claim It

The set-aside is handled inside the estate case in Surrogate's Court, the court that administers estates in New York. The practical steps are:

1. Confirm the estate case. Find out whether a will was filed and whether Surrogate's Court has issued letters to an executor or administrator.
2. Identify qualifying items. List the household and personal property, family books and media, animals and farm equipment, the one vehicle, and the money or securities you intend to claim, with realistic values in each category.
3. Notify the fiduciary early. Tell the executor or administrator that you are claiming the EPTL 5-3.1 exempt property, so those items are set aside and not sold or distributed as ordinary estate assets.
4. Value against each cap. Because each category has its own limit and the money-and-securities amount is reduced by excess value elsewhere, get the valuations right and confirm the math with the fiduciary or counsel.
5. Resolve any dispute in court. If the fiduciary or a creditor disputes whether an item qualifies or how it is valued, Surrogate's Court decides, and the fiduciary must follow the court's direction.

For a vehicle, transferring title usually means dealing with the New York DMV using the $25,000 family exemption rule, along with a death certificate and the documents the DMV requires.

Waiving the Set-Aside

A surviving spouse does not have to claim the set-aside, and the right can also be given up in advance.

• Waiver by agreement. A spouse can release the exempt property set-aside in a written marital agreement, such as a prenuptial or postnuptial agreement. To be effective, a waiver of spousal rights in New York generally must be in writing, signed by the waiving spouse, and acknowledged the way a deed is acknowledged. A general waiver of spousal rights can release the set-aside along with the elective share and the intestate share, so read any agreement carefully.
• Voluntary decision not to claim. A spouse who qualifies can simply choose not to claim certain items, for example to let them pass to children or other heirs. Unclaimed items become part of the ordinary estate.
• Disqualification is different from waiver. A spouse who is disqualified for cause, such as abandonment, does not merely decline the set-aside. That person loses it, and the set-aside then moves to children under 21 if any qualify.

Review any waiver with a New York attorney before relying on it, because it can affect several spousal rights at once.

Frequently Asked Questions

Is New York exempt property capped at one lump sum?

No. Unlike some states that use a single total limit, New York's EPTL 5-3.1 gives each category its own cap: household and personal items up to $20,000, family books and media up to $2,500, animals and certain farm equipment up to $20,000, one motor vehicle up to $25,000, and money and marketable securities up to $25,000. The categories add together, though the money-and-securities amount is reduced by excess value claimed in some other categories.

Can children claim exempt property if there is a surviving spouse?

Generally no. The surviving spouse has first priority to the set-aside. Children under age 21 claim it only when there is no surviving spouse or the spouse is disqualified. Adult children do not claim the set-aside over a qualifying spouse.

Do creditors get paid before the set-aside?

No, not for the exempt items. To the extent EPTL 5-3.1 applies, the set-aside items are not treated as estate assets, so they pass to the spouse or minor children before general creditors. The exception is a valid lien on a specific item, such as a car loan, which stays attached to that item.

How is the set-aside different from the elective share?

The set-aside is a fixed list of capped family items that come off the top of the estate. The elective share is a right to the greater of $50,000 or one-third of the net estate, used against a will that leaves the spouse too little. A spouse can claim both. See the New York surviving spouse rights guide for the elective share details.

Related Guides

• New York Surviving Spouse Rights
• New York Intestate Succession
• New York Executor Duties
• New York Probate Guide
• New York Probate Timeline

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Sources

• "Estates, Powers and Trusts Law Section 5-3.1," New York State Senate, https://www.nysenate.gov/legislation/laws/EPT/5-3.1
• "Estates, Powers and Trusts Law," New York State Senate, https://www.nysenate.gov/legislation/laws/EPT
• "If a Family Member Has Passed Away," New York DMV, https://dmv.ny.gov/more-info/if-a-family-member-has-passed-away

This guide gives general information about New York exempt property and the EPTL 5-3.1 set-aside. Consult a New York probate attorney for advice specific to your situation. It is not legal advice.