2006 New York Code - Right Of Election By Surviving Spouse

 
  § 5-1.1-A Right of election by surviving spouse
    (a)  Where  a  decedent  dies  on  or  after September first, nineteen
  hundred ninety-two 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:
    (1) For the purpose of this section, the  decedent's  estate  includes
  the capital value, as of the decedent's death, of any property described
  in subparagraph (b) (1).
    (2)  The  elective  share, as used in this paragraph, is the pecuniary
  amount equal to the greater of (i) fifty thousand  dollars  or,  if  the
  capital  value  of  the  net estate is less than fifty thousand dollars,
  such capital value, or (ii) one third of the net  estate.  In  computing
  the  net  estate,  debts, administration expenses 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  or
  her under 2-1.8.
    (3)  The  term  "testamentary  provision",  as used in this paragraph,
  includes, in addition to  dispositions  made  by  the  decedent's  will,
  distributions   of  property  pursuant  to  4-1.1  and  any  transaction
  described as a testamentary substitute in subparagraph (b) (1).
    (4) The share of the testamentary provisions to  which  the  surviving
  spouse  is  entitled  hereunder (the "net elective share") is his or her
  elective share, as defined in subparagraphs (1) and (2), reduced by  the
  capital  value of any interest which passes absolutely from the decedent
  to such spouse, or which would have passed absolutely from the  decedent
  to  such  spouse but was renounced by the spouse, (i) by intestacy, (ii)
  by testamentary substitute as described  in  subparagraph  (b)  (1),  or
  (iii) by disposition under the decedent's last will.
    (A)  Unless  the  decedent  has provided otherwise, if a spouse elects
  under this section, such  election  shall  have  the  same  effect  with
  respect to any interest which passes or would have passed to the spouse,
  other  than  absolutely,  as though the spouse died on the same date but
  immediately before the death of the decedent.
    (B) For the purposes of this subparagraph  (4),  (i)  an  interest  in
  property shall be deemed to pass other than absolutely from the decedent
  to  the  spouse  if  the  interest  so passing consists of less than the
  decedent's entire interest in that property or consists of any  interest
  in  a  trust  or  trust  equivalent created by the decedent; and (ii) an
  interest in property  shall  be  deemed  to  pass  absolutely  from  the
  decedent  to  the  spouse  if  it  is  not  deemed  to  pass  other than
  absolutely.
    (5) Where a decedent dies before  September  first,  nineteen  hundred
  ninety-four,  paragraphs  (c)(1)(D)  through  (c)(1)(K) of section 5-1.1
  shall apply except that the words  "fifty  thousand  dollars"  shall  be
  substituted for the words "ten thousand dollars" wherever they appear in
  such paragraphs.
    (b)  Inter  vivos dispositions treated as testamentary substitutes for
  the purpose of election by surviving spouse.
    (1) Where a person dies after August  thirty-first,  nineteen  hundred
  ninety-two and is survived by a spouse who exercises a right of election
  under paragraph (a), the transactions affected by and property interests
  of the decedent described in clauses (A) through (H), whether benefiting
  the   surviving  spouse  or  any  other  person,  shall  be  treated  as
  testamentary substitutes and  the  capital  value  thereof,  as  of  the
  decedent's  death,  shall  be  included in the net estate subject to the
  surviving  spouse's  elective  right  except  to  the  extent  that  the
  surviving  spouse has executed a waiver of release pursuant to paragraph
  (e) with respect thereto. Notwithstanding the foregoing, a  transaction,
  other than a transaction described in clause (G), that is irrevocable or
  is  revocable  only  with  the  consent of a person having a substantial
  adverse  interest (including any such transactions with respect to which
  the decedent retained a special  power  of  appointment  as  defined  in
  10-3.2),  will  constitute  a  testamentary  substitute  only  if  it is
  effected after the date of the marriage.
    (A) Gifts causa mortis.
    (B) The aggregate  transfers  of  property  (including  the  transfer,
  release  or  relinquishment of any property interest which, but for such
  transfer, release or relinquishment, would  come  within  the  scope  of
  clause  (F)),  other than gifts causa mortis and transfers coming within
  the scope of clauses (G) and (H), to or for the benefit of  any  person,
  made  after August thirty-first, nineteen hundred ninety-two, and within
  one year of the death of the decedent, to the extent that  the  decedent
  did  not  receive  adequate  and  full consideration in money or money's
  worth for such transfers; provided, however, that  any  portion  of  any
  such  transfer  that  was  excludible  from  taxable  gifts  pursuant to
  subsections (b) and (e) of section two thousand five  hundred  three  of
  the  United States Internal Revenue Code, including any amounts excluded
  as a result of the election by the surviving spouse to  treat  any  such
  transfer  as  having  been  made  one  half  by him or her, shall not be
  treated as a testamentary substitute.
    (C) Money deposited, together with all dividends or interest  credited
  thereon,  in  a savings account in the name of the decedent in trust for
  another  person,  with  a  banking  organization,   savings   and   loan
  association,  foreign  banking  corporation  or  organization or bank or
  savings and loan association organized under  the  laws  of  the  United
  States, and remaining on deposit at the date of the decedent's death.
    (D)  Money  deposited  after  August  thirty-first,  nineteen  hundred
  sixty-six, together with all dividends or interest credited thereon,  in
  the  name  of  the  decedent  and  another  person and payable on death,
  pursuant to the terms of the deposit or by  operation  of  law,  to  the
  survivor,  with  a  banking  organization, savings and loan association,
  foreign banking corporation or organization or bank or savings and  loan
  association organized under the laws of the United States, and remaining
  on deposit at the date of the decedent's death.
    (E) Any disposition of property made by the decedent whereby property,
  at the date of his or her death, is held (i) by the decedent and another
  person  as  joint  tenants with a right of survivorship or as tenants by
  the entirety where the disposition was made after  August  thirty-first,
  nineteen  hundred  sixty-six,  or (ii) by the decedent and is payable on
  his or her death to a person other than  the  decedent  or  his  or  her
  estate.
    (F) Any disposition of property or contractual arrangement made by the
  decedent,  in  trust  or  otherwise, to the extent that the decedent (i)
  after August thirty-first, nineteen hundred ninety-two, retained for his
  or her life or for any period not ascertainable without reference to his
  or her death or for any period which does not in fact end before his  or
  her  death  the possession or enjoyment of, or the right to income from,
  the property except to the extent that such disposition  or  contractual
  arrangement was for an adequate consideration in money or money's worth;
  or  (ii)  at  the  date  of his or her death retained either alone or in
  conjunction with any other  person  who  does  not  have  a  substantial
  adverse interest, by the express provisions of the disposing instrument,
  a  power  to  revoke  such  disposition or a power to consume, invade or
  dispose of the principal thereof. The provisions  of  this  subparagraph
  shall  not  affect  the  right  of  any income beneficiary to the income
  undistributed or accrued at the date of death nor shall they  impair  or
  defeat  any  right  which  has  vested on or before August thirty-first,
  nineteen hundred ninety-two.
    (G)  Any  money,  securities or other property payable under a thrift,
  savings, retirement,  pension,  deferred  compensation,  death  benefit,
  stock  bonus  or  profit-sharing  plan,  account, arrangement, system or
  trust, except that with respect to a plan to which subsection  (a)  (11)
  of  section  four hundred one of the United States Internal Revenue Code
  applies or a defined contribution plan to which such subsection does not
  apply pursuant to paragraph (B) (iii) thereof, only  to  the  extent  of
  fifty   percent  of  the  capital  value  thereof.  Notwithstanding  the
  foregoing,  a  transaction  described  herein  shall  not  constitute  a
  testamentary  substitute  if  the decedent designated the beneficiary or
  beneficiaries of  the  plan  benefits  on  or  before  September  first,
  nineteen   hundred  ninety-two  and  did  not  change  such  beneficiary
  designation thereafter.
    (H) Any interest  in  property  to  the  extent  the  passing  of  the
  principal  thereof  to or for the benefit of any person was subject to a
  presently exercisable  general  power  of  appointment,  as  defined  in
  section  two  thousand  forty-one  of the United States Internal Revenue
  Code, held by the decedent immediately before his or her death or  which
  the  decedent,  within one year of his or her death, released (except to
  the extent such release results from a lapse of the power which  is  not
  treated  as  a release pursuant to section two thousand forty-one of the
  United States Internal Revenue Code) or exercised in favor of any person
  other than himself or herself or his or her estate.
    (I) A transfer of a security to a beneficiary pursuant to  part  4  of
  article 13 of this chapter.
    (2)  Transactions  described in clause (D) or (E) (i) shall be treated
  as testamentary substitutes in the proportion that the funds on  deposit
  were  the property of the decedent immediately before the deposit or the
  consideration for the property described in clause (E) (i) was furnished
  by  the  decedent.  The  surviving  spouse  shall  have  the  burden  of
  establishing  the  proportion  of the decedent's contribution; provided,
  however, that where the surviving spouse  is  the  other  party  to  the
  transaction, it will be conclusively presumed that the proportion of the
  decedent's   contribution   is   one-half.   For  the  purpose  of  this
  subparagraph, the court may accept such  evidence  as  is  relevant  and
  competent,  whether  or  not  the  person  offering  such evidence would
  otherwise be competent to testify.
    (3) The property referred to in clause (E) shall include United States
  savings bonds and other United States obligations.
    (4) The provisions of this paragraph shall not prevent  a  corporation
  or  other  person from paying or transferring any funds or property to a
  person  otherwise  entitled  thereto,  unless  there  has  been   served
  personally  upon such corporation or other person a certified copy of an
  order enjoining such payment or transfer made by the  surrogate's  court
  having  jurisdiction  of  the  decedent's  estate or by another court of
  competent  jurisdiction.  A  corporation  or  other  person  paying   or
  transferring   any   funds  or  property  described  in  clause  (G)  of
  subparagraph one of  this  paragraph  to  a  person  otherwise  entitled
  thereto,  shall  be held harmless and free from any liability for making
  such payment or transfer, in any action  or  proceeding  which  involves
  such  funds  or  property.  Such  order  may  be made, on notice to such
  persons and in such manner as the court may direct, upon application  of
  the surviving spouse or any other interested party and on proof that the
  surviving  spouse  has  exercised  his  or  her  right of election under
  paragraph (a). Service  of  a  certified  copy  of  such  order  on  the
  corporation  or  other  person  holding such fund or property shall be a
  defense, during the effective period of the  order,  in  any  action  or
  proceeding which involves such fund or property.
    (5)  This paragraph shall not impair or defeat the rights of creditors
  of the decedent with respect to any matter as to which any such creditor
  has rights.
    (6) In case of  a  conflict  between  this  paragraph  and  any  other
  provision  of  law  affecting the transactions described in subparagraph
  (1) of this paragraph, this paragraph controls.
    (7) If any part of this section  is  preempted  by  federal  law  with
  respect  to a payment or an item of property included in the net estate,
  a person who, not for value, received that payment or item  of  property
  is  obligated  to return to the surviving spouse that payment or item of
  property or is personally liable to the surviving spouse for the  amount
  of  that  payment  or  the value of that item of property, to the extent
  required under this section.
    (c) General provisions governing right of election.
    (1) Where an election has been made under this section,  the  will  or
  other instrument making a testamentary provision, as the case may be, is
  valid as to the residue after the share to which the surviving spouse is
  entitled  has  been  deducted,  and the terms of such will or instrument
  remain otherwise effective so far as possible, subject, however, to  the
  provisions of clause (a)(4)(A).
    (2)  Except  as  otherwise  expressly  provided  in  the will or other
  instrument making a testamentary provision, ratable contribution to  the
  share  to  which  the  surviving spouse is entitled shall be made by the
  beneficiaries and distributees (including the  recipients  of  any  such
  testamentary  provision),  other  than  the  surviving spouse, under the
  decedent's will, by intestacy and other instruments making  testamentary
  provisions,  which  contribution  may be made in cash or in the specific
  property received from the decedent by the person required to make  such
  contribution  or  partly  in  cash  and  partly in such property as such
  person in his or her discretion shall determine.
    (3) The right of election is personal to the surviving spouse,  except
  that an election may be made by:
    (A)  The  guardian  of  the  property  of  an  infant  spouse, when so
  authorized by the court having jurisdiction of the decedent's estate.
    (B) The committee of an incompetent spouse, when so authorized by  the
  court that appointed the committee.
    (C) The conservator of a conservatee spouse, when so authorized by the
  court that appointed the conservator.
    (D)  The guardian ad litem for the surviving spouse when so authorized
  by the court that appointed such guardian.
    (E) A guardian authorized under Article 81 of the mental hygiene  law,
  when so authorized by the court that appointed the guardian.
    (4)  Any  question  arising  as  to  the  right  of  election shall be
  determined by the 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.
    (5)  Upon  application  by a surviving spouse who has made an election
  under this  section,  the  court  may  make  an  order  cancelling  such
  election,  provided  that  no  adverse  rights  have  intervened  and no
  prejudice is  shown  to  creditors  of  such  spouse  or  other  persons
  interested  in  the  estate. Such application shall be made on notice to
  such persons and in such manner as the court  may  direct.  A  certified
  copy of such order shall be indexed and recorded in the same manner as a
  notice of pendency of an action in the office of the clerk of the county
  in which any real property of the decedent is situated.
    (6)  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  has  elected,  under  paragraph  (h)  of
  3-5.1,  to  have the disposition of his or her property situated in this
  state governed by the laws of this state.
    (7) The decedent's estate shall include all property of  the  decedent
  wherever situated.
    (8)  An election made by the surviving spouse under this section is in
  lieu of any right of dower to which such spouse may be entitled.
    (9) The references in this paragraph to sections of the United  States
  Internal  Revenue  Code  are  to  the  Internal Revenue Code of 1986, as
  amended.  Such  references,  however,  shall  be  deemed  to  constitute
  references to any corresponding provisions of any subsequent federal tax
  code.
    (d) 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, but in no event later than two years after the date  of
  decedent's  death.  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 but in  no  event  later
  than  two  years  from  the date of decedent's death. 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.
    (2) The time to make such election may be extended  before  expiration
  by  an order of the surrogate's court from which such letters issued for
  a further period not exceeding six months upon any one  application.  If
  the  spouse defaults in filing such election within the time provided in
  subparagraph (d) (1), the surrogate's court may relieve the spouse  from
  such  default  and authorize the making of an election within the period
  fixed by the order, provided that no decree settling the account of  the
  personal  representative  has  been made and that twelve months have not
  elapsed since the issuance of the letters.  An  application  for  relief
  from  the  default  and  for an extension of time to elect shall be made
  upon a petition showing reasonable cause and on notice to  such  persons
  and in such manner as the surrogate may direct. A certified copy of such
  order  shall  be  indexed and recorded in the same manner as a notice of
  pendency of an action in the office of the clerk of each county in which
  real property of the decedent is situated.
    (3) The time limited in this  paragraph  for  making  an  election  is
  exclusive  and  shall  not  be  suspended  or  otherwise affected by any
  provision of  law,  except  that  the  surrogate  may,  in  his  or  her
  discretion,  permit  an  election  to  be made in behalf of an infant or
  incompetent spouse at any time up to, but no later than,  the  entry  of
  the  decree  of  the first judicial account of the representative of the
  estate, made more than seven months after the issuance of letters.
    (e) Waiver or release of right of election.
    (1) A spouse, during the lifetime of the other, may waive or release a
  right of election, granted by this section, against a particular or  any
  last will or a testamentary substitute, as described in subparagraph (b)
  (1)  made  by the other spouse. A waiver or release of all rights in the
  estate of the other spouse is a waiver or release of a right of election
  against any such last will or testamentary provision.
    (2) To be effective under this section, a waiver or release must be in
  writing  and subscribed by the maker thereof, and acknowledged or proved
  in the manner required by the laws of this state for the recording of  a
  conveyance of real property.
    (3)  Such  a  waiver  or  release is effective, in accordance with its
  terms, whether:
    (A) Executed before or after the marriage of the spouses.
    (B) Executed before, on or after  September  first,  nineteen  hundred
  sixty-six.
    (C)  Unilateral  in  form,  executed  only  by  the  maker thereof, or
  bilateral in form, executed by both spouses.
    (D) Executed with or without consideration.
    (E) Absolute or conditional.
    (4) If there is in effect at  the  time  of  the  decedent's  death  a
  waiver, or a consent to the decedent's waiver, executed by the surviving
  spouse  with  respect to any survivor benefit, or right to such benefit,
  under subsection (a) (11) of section four hundred one  or  section  four
  hundred  seventeen of the United States Internal Revenue Code, then such
  waiver shall be deemed to  be  a  waiver  within  the  meaning  of  this
  paragraph  (e)  against  the  testamentary  substitute constituting such
  benefit.