Full question:
My husband and I were living separately for the last few years. He passed away a few weeks back, and has left nothing for me in his will. We were living in New York for the last two or three decades. But, my husband spent the last two years of his life in another state. Can I inherit my husband’s estate?
- Category: Wills and Estates
- Subcategory: Elective Share of Estate
- Date:
- State: New York
Answer:
New York laws allow a surviving spouse a personal right of election. The elective share of the surviving spouse is one-half of the net estate, if the decedent is not survived by any issue. In cases where one or more issue survives the decedent, the elective share of the spouse is one-third of the net estate. Any questions arising as to the right of election is determined by the surrogate's court having jurisdiction of the decedent's estate. The proceedings will be brought for that purpose on notice to all interested persons.But, the right of election may not be available to the surviving spouse, if the decedent was not domiciled in New York at the time of death. However, if the decedent had elected New York laws to govern his property in New York, the surviving spouse can exercise the right to election.
Therefore, you may be able to inherit your deceased husband’s property if he had elected New York laws to govern his properties here. The right to election may be exercised in a proceeding brought for that purpose in the surrogate’s court.
The relevant law as to right of election is as follows:
Estates, Powers and Trusts Law EPTL § 5-1.1-A
(1) Where a testator executes a will after August thirty-first, nineteen hundred thirty but prior to September first, nineteen hundred sixty-six, and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent's estate, subject to the following:
(A) For the purposes of this section, the elective share of the surviving spouse is one-third of the net estate if the decedent is survived by one or more issue and, in all other cases, one-half of such net estate. In computing the net estate, debts, administration and reasonable funeral expenses shall be deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves the surviving spouse from contributing to all such taxes the amounts apportioned against him under 2-1.8.
(5) Any question rising as to the right of election shall be determined by the surrogate’s court having jurisdiction of the decedent's estate in a proceeding brought for that purpose on notice to all interested persons in such manner as the court may direct, or in a proceeding for the judicial settlement of the accounts of the personal representative.
(7) The right of election granted by this section is not available to the spouse of a decedent who was not domiciled in this state at the time of death, unless such decedent elects, under paragraph (h) of 3-5.1, to have the disposition of his property situated in this state governed by the laws of this state.
(e) Procedure for exercise of right of election.
(1) An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be. Written notice of such election shall be served upon any personal representative in the manner herein provided, or upon a person named as executor in a will on file in the surrogate's court in a case where such will has not yet been admitted to probate, and the original thereof shall be filed and recorded, with proof of service, in the surrogate's court in which such letters were issued within six months from the date of the issuance of letters. Such notice may be served by mailing a copy thereof, addressed to any personal representative, or to the nominated executor, as the case may be, at the place of residence stated in the designation required by SCPA 708 or in such other manner as the surrogate may direct.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
