The Facts: My father married a woman named Jane after my mother’s death. They were married for ten years before my father died. In his Will, my father left everything except the contents of his house to me and my sister.

The Questions: Is it true that Jane is entitled to a larger share of my father’s estate than what he left her in his Will?

The Answer: Unfortunately for you and your sister, because she is your father’s surviving spouse, Jane is entitled to more than the contents of the house. Under New York law, spouses cannot disinherit each other. Although our father left something to Jane and did not technically disinherit her, the value of the contents of the house likely make up a very small percentage of the value of your father’s estate. Assuming Jane wants more than what is left to her in the Will, and assuming she did not waive her rights in a pre- or post-nuptial agreement, Jane may ask the surrogate’s court to award her approximately 1/3 of the net value of your father’s entire estate, regardless of the terms of his Will.

If someone is legally married at the time of their death, their spouse can exercise what is called a “right of election”. This means that the surviving spouse can elect to receive a share of the decedent’s estate valued at approximately 1/3 of all of the assets of the deceased spouse. Under the facts you provided, Jane can elect to receive not only 1/3 of the net value of your father’s testamentary assets passing under your his Will (assets that were owned outright by your father in his individual capacity) but, also 1/3 of the net value of your father’s non-testamentary assets. Such assets are sometimes referred to as testamentary substitutes and include, among other things, gifts made by a decedent in contemplation of death, jointly held real property, accounts in a decedent’s name that were held in trust for another person or designated as transfer on death accounts, assets held in trust for the benefit of another, assets payable under retirement plans, pensions, profit sharing and deferred compensation plans and death benefits under a life insurance policy. Since the assets a decedent owned jointly with others and/or held for the benefit of others are considered when calculating the value of a surviving spouse’s elective share, the beneficiaries under the Will are not the only people who may be adversely impacted when a surviving spouse successfully exercises his/her right of election. This is just one of the reasons an election is often the first step in what can be a contentious and protracted litigation.

The right of election is personal to the surviving spouse but, if the surviving spouse is unable to make the election, a guardian or guardian ad litem appointed by the court to represent the interests of the surviving spouse may make the election on the spouse’s behalf. The surviving spouse must exercise the right of election within six months of the issuance of letters testamentary and in no event later than two years after the decedent’s death. To prevent the distribution of assets that may ultimately be determined to be part of the elective share payable to the surviving spouse, notice of the election must be served upon all people and entities that are in possession of or have control over the decedent’s assets

The executor administering an estate where the right of election has been exercised may be able to disqualify the person who made the election from receiving the elective share. To do so the executor must prove that the person attempting to collect an elective share was not actually married to the decedent at the time of death. If there is no question that the person seeking an elective is the surviving spouse, the executor may be able to defeat the election by establishing that the spouse had the means but refused to support the decedent prior to death, that the spouse abandoned the decedent prior to death or that the marriage was void as incestuous or bigamous.

Although the outcome of all litigation is uncertain, because of the issues raised in litigation involving the right of election, it can be particularly emotional and disturbing. As such, it is best to consult an attorney with experience in estate litigation and specifically with cases involving a claim for an elective share.

This article first appeared in the July 21, 2016 issue of the Times Beacon Newspapers.

Linda M. Toga, Esq. provides legal services in the areas of estate administration, litigation, wills, trusts, estate planning, small business services and real estate from her East Setauket office.