New York Surviving Spouse Rights in Probate
New York surviving spouse rights guide covering the elective share, exempt property set-aside, the intestate share, waiver, and Surrogate's Court deadlines.
New York law gives a surviving spouse rights that a will cannot erase. Even if the will leaves the spouse little or nothing, the spouse can claim a minimum share of the estate through the right of election, and the family can set aside certain property before general creditors and other beneficiaries are paid. These protections run through Surrogate's Court, the court that handles estates in New York.
This guide explains the elective share, the exempt property set-aside, the intestate share when there is no will, how a spouse can waive or forfeit these rights, and the deadlines that matter.
Overview of Spousal Rights
New York protects a surviving spouse through several separate rules. A spouse may benefit from more than one at the same time.
- Elective share. A right to claim a minimum share of the estate even when the will provides less.
- Exempt property set-aside. Specific items and cash that pass to the spouse under EPTL 5-3.1, outside the ordinary estate.
- Intestate share. The inheritance a spouse receives under EPTL 4-1.1 when there is no valid will.
Unlike Florida or Texas, New York does not provide a constitutional probate homestead shield for the family home. Home transfers run through title, a transfer-on-death deed, survivorship, a trust, or the probate or administration case. Property tax exemptions are handled separately.
To hold these rights, a person must be legally married to the decedent at death. A separated spouse who is not divorced is generally still a surviving spouse, though conduct can affect eligibility. See Waiver and Forfeiture below.
The Elective Share
The elective share, also called the right of election, is the core protection against disinheritance. New York's Estates, Powers and Trusts Law lets a surviving spouse choose to take a statutory minimum share of the estate instead of what the will leaves.
A spouse only needs the election when the will, plus what already passes to the spouse outside the will, leaves the spouse less than the statutory minimum. If the will already gives the spouse more than the minimum, the spouse simply takes under the will and does not elect. The election is a right, not an automatic result, so a spouse who wants it has to claim it.
How Much the Spouse Can Claim
The elective share is the greater of $50,000 or one-third of the net estate. If one-third of the net estate is less than $50,000, the spouse can still claim the $50,000 floor, up to the size of the estate. Confirm the current figures and how they apply with Surrogate's Court or a New York probate attorney before you rely on a number, because the elective share involves valuation and offset rules.
What Counts in the Net Estate
The elective share is not limited to property that passes under the will. New York adds back certain transfers, often called testamentary substitutes, so a spouse cannot be sidestepped by moving assets out of the probate estate.
Common testamentary substitutes include:
- Totten trust and payable-on-death bank accounts.
- Jointly held property and survivorship accounts, to the extent of the decedent's contribution.
- Property over which the decedent kept the power to revoke or consume, such as certain revocable trusts.
- Some gifts made near death and certain retirement benefits.
The spouse's elective share is measured against this larger net estate and is then reduced by property the spouse already receives from the estate or through these substitutes.
How a Spouse Elects
The right of election is a choice. A spouse files to elect against the will in Surrogate's Court and serves the estate fiduciary. If a spouse does nothing, the spouse takes only what the will provides. Because the filing window is strict, a spouse who is considering an election should act early. See Deadlines below.
Exempt Property / Set-Aside Items
Separate from the elective share, EPTL 5-3.1 sets aside specific family property for the surviving spouse. If there is no surviving spouse, or the spouse is disqualified, the set-aside goes to the decedent's children under age 21. To the extent the statute applies, these items are not treated as estate assets, so they pass before general creditors and other beneficiaries.
The set-aside categories and value caps are:
| Set-aside item | Value cap |
|---|---|
| Household and personal items | $20,000 |
| Family books, media, and electronic storage items | $2,500 |
| Domestic and farm animals and certain farm equipment | $20,000 |
| One motor vehicle | $25,000 |
| Money and marketable securities | $25,000 |
The money and securities set-aside is reduced by excess value claimed in certain other categories. For the one vehicle, the New York DMV uses the same $25,000 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.
These items are in addition to the elective share and the intestate share, not instead of them.
Intestate Share
When a New York resident dies without a valid will, EPTL 4-1.1 controls who inherits probate property. The surviving spouse's intestate share depends on whether the decedent left descendants, called issue.
- Spouse and no issue. The spouse receives the entire intestate estate.
- Spouse and issue. The spouse receives the first $50,000 plus one-half of the residue. The issue receive the balance by representation.
Intestacy applies only to property that does not pass by will, beneficiary designation, joint ownership, or trust. A spouse who inherits by intestacy may still claim the exempt property set-aside. For the full order of heirs, see the New York intestate succession guide.
The elective share and the intestate share do not stack. The elective share is the tool a spouse uses against a will that gives too little. When there is no valid will, the spouse takes the intestate share under EPTL 4-1.1 instead, and there is no will to elect against.
Waiver and Forfeiture
Spousal rights are strong, but they are not absolute.
Waiver by Agreement
A spouse can give up the right of election in a written agreement, such as a prenuptial or postnuptial agreement. To be effective, a waiver generally must be in writing, signed by the waiving spouse, and acknowledged the way a deed is acknowledged. A general waiver can release the elective share, the intestate share, and related rights. Review any agreement with a New York attorney before relying on it.
Disqualification and Forfeiture
New York's Estates, Powers and Trusts Law lists conduct that disqualifies a person from taking as a surviving spouse. Grounds can include a divorce or annulment that was final, a marriage that was legally void, abandonment of the decedent by the surviving spouse, and failure to support the decedent when support was required. A spouse who is disqualified loses the elective share, the intestate share, and the exempt property set-aside. The slayer rule can also bar a person who wrongfully caused the decedent's death.
Whether a fact pattern disqualifies a spouse is often disputed. These questions belong in front of Surrogate's Court with legal help.
Deadlines
Timing controls the elective share. The right of election must be exercised within a limited window that runs from the issuance of letters to the estate fiduciary, with an outer limit measured from the date of death. A spouse who misses the window can lose the right, even when the underlying claim was strong. Any extension is available only for narrow reasons and only if the spouse asks the court in time.
Because the exact filing period and extension rules are strict, confirm the current deadline with Surrogate's Court or a New York probate attorney as soon as the estate case opens. Do not wait for the estate to finish. For the broader estate calendar, see the New York probate timeline.
The exempt property set-aside is claimed during administration. A spouse should raise it early with the fiduciary so the items are not distributed or sold as ordinary estate assets.
Steps for a Surviving Spouse
A surviving spouse can protect these rights with a few early moves.
- Confirm the estate case. Find out whether a will was filed and whether Surrogate's Court has issued letters to an executor or administrator.
- Read the will. Compare what the will leaves you against the elective share minimum and the exempt property set-aside.
- List assets that pass outside the will. Joint accounts, payable-on-death accounts, and revocable trust property can count toward the net estate for the elective share.
- Claim the set-aside early. Tell the fiduciary you are claiming the EPTL 5-3.1 exempt property so those items are not sold or distributed.
- Track the election window. The right of election has a strict filing period. Confirm it with Surrogate's Court or a New York probate attorney and calendar it.
Working with the fiduciary, and with a New York probate attorney when the estate is large or contested, keeps these rights from lapsing.
Frequently Asked Questions
Can a spouse be disinherited in New York?
Not completely. Even if the will leaves the spouse nothing, the surviving spouse can usually claim the elective share, the greater of $50,000 or one-third of the net estate, plus the EPTL 5-3.1 exempt property set-aside, unless the spouse waived those rights or is disqualified.
What is the New York elective share amount?
Under New York's Estates, Powers and Trusts Law, the elective share is the greater of $50,000 or one-third of the net estate. The net estate includes testamentary substitutes such as some joint accounts and payable-on-death assets, and the share is reduced by what the spouse already receives.
What does the exempt property set-aside include?
EPTL 5-3.1 sets aside household and personal items up to $20,000, family books and media up to $2,500, certain animals and farm equipment up to $20,000, one motor vehicle up to $25,000, and money and marketable securities up to $25,000, for the surviving spouse or, if none, children under 21.
Does a surviving spouse inherit everything if there is no will?
Only if there are no descendants. Under EPTL 4-1.1, a spouse with no issue takes the whole intestate estate, but a spouse with issue takes the first $50,000 plus one-half of the residue, and the issue take the rest.
Related Guides
- New York Intestate Succession
- New York Executor Duties
- New York Probate Guide
- New York Probate Timeline
- New York Wills
- New York Voluntary Administration
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 Section 4-1.1," New York State Senate, https://www.nysenate.gov/legislation/laws/EPT/4-1.1
- "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 surviving spouse rights. It is not legal advice.
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