Many Brooklyn couples assume a will is the final word. Under New York law, it is not — at least where a surviving spouse is concerned. A husband or wife cannot be fully disinherited, even by an airtight will drafted across the street from Kings County Surrogate’s Court. This checklist walks you through how the elective share actually works.
Checklist Item 1: Confirm the spouse cannot be cut out
Under EPTL 5-1.1-A, a surviving spouse has the right to claim an elective share against the estate of a deceased spouse who was a New York domiciliary. This right exists regardless of what the will says. If a Park Slope homeowner leaves everything to children from a prior marriage, the current spouse can still elect.
Checklist Item 2: Calculate the amount
The elective share is the greater of $50,000 or one-third of the net estate. Importantly, New York uses the concept of the net elective share estate, which sweeps in more than the probate assets alone.
Checklist Item 3: Identify testamentary substitutes
This is where many Brooklyn families are surprised. The elective share is calculated against the augmented estate, which includes testamentary substitutes — assets that pass outside the will but still count. Common examples include:
- Totten trust (payable-on-death) bank accounts
- Joint accounts and jointly held real estate (the decedent’s contributed portion)
- Certain lifetime gifts made within one year of death
- Retirement accounts and some annuities
- Assets in a revocable trust
A Bay Ridge spouse who tried to defeat the elective share by retitling a brownstone into a joint account with an adult child will often find those assets pulled back into the calculation.
Checklist Item 4: Watch the deadlines
The election is not automatic. The surviving spouse must file a written notice of election, and the deadline is generally within six months of the issuance of letters testamentary or letters of administration, and no later than two years after death. Filing happens in the Surrogate’s Court (governed by the SCPA) handling the estate — for most Brooklyn residents, that is Kings County Surrogate’s Court on Adams Street downtown.
Checklist Item 5: Know who is disqualified
Not every survivor qualifies. A spouse may lose the right to elect through abandonment, failure to support, a valid divorce or annulment, or a properly executed waiver. Prenuptial and postnuptial agreements that satisfy New York’s formalities can waive the elective share — a common planning tool for Brooklyn couples entering second marriages with children to protect.
Checklist Item 6: Plan proactively, not reactively
If you want to direct assets away from a spouse, hoping to dodge the elective share by clever titling rarely works because of the testamentary-substitute rules. The cleaner path is a negotiated, properly executed waiver or a comprehensive plan that accounts for the spouse’s statutory rights. Conversely, a surviving spouse who feels shortchanged should not assume the will controls — the right to elect may be worth far more than what the document offers.
The interaction between wills (executed under EPTL 3-2.1), intestacy rules (EPTL Article 4), and the elective share can change the entire outcome of an estate. Small titling decisions made years earlier ripple through the calculation.
Consult a New York Attorney
Elective share questions turn on exact dates, titling, and document formalities that vary case by case. Before filing or relying on a will’s terms, speak with a qualified New York estate attorney familiar with Kings County Surrogate’s Court practice. This article is general information, not legal advice.
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