Confirmed by the Inheritance Law | Widows will be able to claim a share of the inheritance, even if they were excluded from the will

New York’s Inheritance Law protects the surviving spouse even if the will left them out or gave them less than what the law provides. Through the so-called “Right of Election”, they can claim a share of the deceased’s estate, subject to certain deadlines and procedures.

The rule seeks to prevent spouses from being disinherited, although it does not operate automatically and contemplates situations in which this protection is lost.

What does New York’s Inheritance Law establish regarding the surviving spouse?

Section 5-1.1-A of New York’s Estates, Powers and Trusts Law (EPT) grants the surviving spouse a personal right to elect a portion of the inheritance.

The elective share is equal to the greater of:

• $50,000 or the total net estate if it is less than that amount.
• One third of the deceased’s net estate.

This estate is calculated after deducting debts, administration expenses, and reasonable funeral expenses.

The spouse must exercise this right within six months of the issuance of the letters testamentary or of administration, and no later than two years from the death.

Are the other heirs harmed by the Surviving Spouse’s Right of Election?

If the surviving spouse exercises the right of election, their share is separated first, and then the rest of the assets are distributed according to the will or the rules of intestate succession.

For this reason, the other beneficiaries may receive a smaller share than what the deceased originally left them.

The exceptions: When does the Inheritance Law not apply?

This protection does not apply if the deceased was not domiciled in New York at the time of death, unless they had expressly chosen for their assets located in the state to be governed by New York law.

In addition, a person may waive this right through a valid, signed, and acknowledged agreement in accordance with the requirements for recording a real estate transfer.

It also does not apply when:

• They were divorced or the marriage was annulled.
• They were part of an invalid marriage due to incest, bigamy, or a prohibited remarriage.
• They had an active separation judgment against them.
• They had an obligation to provide support, had the means, and refused.

The scope is not limited to assets included in the will, since other assets such as joint accounts, assets with rights of survivorship, trusts, transfers, and certain retirement plans or death benefits may also be considered.