What Do I Need to Know Before Filing a Right of Election Against An Estate?

People can maintain a great deal of control over their estate through their will. However, there’s a limit to what can be done if a spouse is involved. People can’t completely disinherit their spouses under New York’s Estate, Powers, and Trusts Law of 1966. If your spouse doesn’t get along with you or in the case of their demise, you can’t be excluded from their estate. Here’s what you need to know before filing for the right of election against your spouse’s estate.

Right of Election

If your spouse dies with or without a will, you are still entitled to an elective share from their estate. You have the right to get a one-third share from their estate. These assets include all the items passed down through the will. This includes, gifts causa mortis, joint accounts, totten trusts, retirement accounts, revocable transfers. It also includes the property owned by the deceased which is due to someone else and not the surviving partner upon their death.

The right of election gives you the choice to either accept what you have received in the will or under intestacy or have one-third of your spouse’s estate. If you feel that you have not been given your proper share in the will, you should consult an estate attorney. The attorney will help you calculate your elective share. This will help you to decide whether you want to move forward and file a right of election or not.

Illustration of judges and jury

What to Do If the Will is Present?

If your spouse’s will specifically states your entitlement, that will be in addition to your equalization entitlement. You can file for right of election if your spouse’s will doesn’t include your share. You will have the right to choose between the two. If you choose equalization entitlement, which is the 50% of the difference between your spouse’s net family properties, your entitlement in the will may be forfeited. In this case, the will is directed as if the surviving spouse had died before the deceased spouse. You can only choose one of the above-mentioned options, not both.

What to Do If a Will is Absent or There is Partial Intestacy

Similarly, if there is no will, you can either pick the entitlement specified as per the law or the equalization claim. In the case of partial intestacy, you can choose between entitlement under the will and the provincial intestacy regulations and the equalization claim. If the will doesn’t exist, you must consider what’s more favorable to you, the SLRA’s intestacy provisions or property’s division of the respective spouses.

Looking for an estate law attorney Queens, Estate lawyer Brooklyn and New York City area? Ledwidge & Associates P.C. can help you with your legal battles. Our excellent estate planning services can help you file your right of election and get you the rights you deserve. Get in touch with us to hire our expert probate litigation lawyers for legal guidance.


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What Do I Need to Know Before Filing a Right of Election Against An Estate?

Ledwidge & Associates

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