Can my spouse claim a share of my estate even if I disinherit them?

What the Law Says

New York law protects surviving spouses from total disinheritance by granting them a legal right to claim part of the estate — called the 'elective share.' This right exists regardless of what your will says.

Under New York Estates, Powers and Trusts Law (EPTL), a surviving spouse may elect to take a share of the deceased spouse’s estate instead of what was left to them (or not left to them) in the will.

The elective share is generally one-third of the decedent’s net estate — including assets passing outside the will, like joint accounts or payable-on-death accounts — calculated after debts and expenses are paid.

The spouse must file a written election with the Surrogate’s Court within six months after the executor is appointed (or within two months after receiving notice of appointment, whichever is later).

There is a minimum elective share amount: if one-third of the net estate is less than $50,000, the spouse receives $50,000 instead.

Statutory Text

The surviving spouse of a decedent dying on or after September 1, 1992 shall have a right to an elective share equal to the greater of fifty thousand dollars or one-third of the net estate.

— Estates, Powers and Trusts Law § 5-1.1-A(a) — Elective share of surviving spouse

Statutory Text

The election must be made within six months after the date of issuance of letters testamentary or letters of administration...

— Estates, Powers and Trusts Law § 5-1.1-A(b) — Time for election

What to Do

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