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Wednesday, April 14, 2021

Have You Ever Heard of the Elective Share?

Have you considered trying to disinherit your spouse in your estate plan? While some may not understand why a person would want to do this, it is actually quite common and there can be many reasons behind it. Many, however, will be thwarted in such an attempt to disinherit a spouse because of New York’s Right of Election, also referred to as its elective share law. Here, we will go into more detail about the elective share and its potential implications for your estate plan.

Have You Ever Heard of the Elective Share?

Under New York’s right of election law, a surviving spouse is protected from disinheritance from the estate of the deceased spouse. Should an attempt to disinherit the surviving spouse have been made, the surviving spouse has the ability to take an “elective share” of the estate. In New York, the elective share is either $50,000 or one-third of the net estate of the deceased spouse, whichever is larger.

In order to calculate the elective share, the net estate is totaled. The net estate will include the probate estate as well as “testamentary substitutes.” A testamentary substitute is one where assets will pass outside of probate, such as transfer on death accounts, payable on death accounts, and assets held in a living trust as well as jointly owned property and bank accounts. Life insurance proceeds, however, will not be included in the net estate for purposes of determining the elective share.

Do not operate under the misconception that you can explicitly state your wish to disinherit your spouse in your will and expect that this will actually occur. Whether explicitly stating such an intention or simply leaving your spouse out of your will, the fact remains that your surviving spouse will most likely have the right to an elective share of your estate. To claim the elective share, the surviving spouse will need to file a Right of Election in the Surrogate Court’s probate proceedings. In order to claim the elective share, the surviving spouse must file the Right of Election within six months of the Surrogate Court appointing a personal representative of the estate and issuing Letters Testamentary.

If you are hoping to circumvent the elective share and effectively disinherit your spouse, you must be proactive in putting such a plan in place. The Right of Election can be waived pursuant to a clause in either a prenuptial or postnuptial agreement. In order to be found valid, a waiver of the Right of Election in such an agreement must be understood by both parties, agreed to, and signed. Should a court go on to find that either party to the agreement failed to fully understand it, the agreement as a whole may be disregarded, including the waiver of the Right of Election.

Elder Law Attorneys

There are many estate planning laws that you might not be aware of, but can, nonetheless have a profound impact on your estate plans. For knowledgeable estate planning legal counsel, talk to the trusted attorneys at Merlino & Gonzalez. Contact us today.


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