Every so often, a client tells me, "I want to leave my spouse out of my will entirely." My answer surprises them: in New York, you can't — not completely. State law gives a surviving husband or wife a guaranteed minimum slice of the estate, no matter what the will says. It's called the spousal right of election, and it's one of the most important and least understood rules in New York estate law.
Whether you're planning your own estate or you're a surviving spouse who was left far less than you expected, here's how the right of election works in 2026.
What Is the Right of Election?
The right of election, found in EPTL 5-1.1-A, protects a surviving spouse from being disinherited. It lets that spouse reject what the will actually leaves them and instead claim a statutory minimum — the elective share. New York adopted this rule on the theory that marriage is an economic partnership, and a spouse shouldn't be able to cut the other out entirely with the stroke of a pen.
How Much Is the Elective Share?
The elective share is the greater of $50,000 or one-third of the net estate.
So if the net estate is $900,000, the surviving spouse can elect to take $300,000. If the estate is only $120,000, the spouse can take $50,000 (because $50,000 is greater than one-third of $120,000, which is $40,000). Whatever the will left them counts toward the share — the election makes up the difference.
Key point: The elective share is a floor, not a ceiling. If the will already leaves the spouse more than one-third, there's usually no reason to elect. The right matters when a spouse is left less than the statutory minimum.
The Twist: "Testamentary Substitutes" Count Too
Here's where people — and even some attorneys — get tripped up. The "net estate" used to calculate the elective share is not just the assets passing under the will. New York deliberately reaches further, pulling in a category called testamentary substitutes so that a spouse can't be shortchanged through clever titling.
Testamentary substitutes generally include:
- Joint bank accounts and jointly held property (the decedent's share)
- Payable-on-death and transfer-on-death accounts
- Totten trusts (in-trust-for bank accounts)
- Retirement accounts and certain pension benefits
- Gifts made within one year of death
- Property over which the decedent kept control or a power to revoke
Because of this, someone who tries to sidestep their spouse by moving everything into joint or POD accounts usually fails — those assets are added back when the elective share is calculated. If you want to understand which assets avoid probate but still count here, see our beneficiary designation guide.
The Deadline: Don't Wait
The right of election is not automatic — the surviving spouse has to affirmatively claim it by serving and filing a written notice of election with the Surrogate's Court. And the clock is strict:
- Generally within six months after Letters Testamentary or Letters of Administration are issued, and
- In any event, no later than two years after the date of death.
Miss the window and the right can be lost. If you're a surviving spouse who suspects you were left too little, this is not something to sit on. The clock starts when the estate opens in the Surrogate's Court probate process.
When a Spouse Loses the Right
The right of election isn't unconditional. A surviving spouse can be disqualified in situations such as:
- A valid waiver — the spouse gave up the right in a prenuptial or postnuptial agreement
- Divorce or annulment — a final decree ends the marriage and the right
- Abandonment — a spouse who abandoned the decedent, or who failed to support them when required, may forfeit the right
- A void marriage — for example, a bigamous or incestuous marriage
Note that separation alone usually does not eliminate the right — the couple generally must be divorced. This surprises many people who assume that living apart is enough.
How to Plan Around It (Legitimately)
If you have a reason to limit what a spouse receives — a second marriage, children from a prior relationship, a business you want to keep in the family — the correct tool is a properly drafted and executed prenuptial or postnuptial agreement that waives the right of election. To be enforceable in New York, the waiver must be in writing, signed, and acknowledged with the same formality as a deed. Handshake understandings and informal notes will not hold up.
For blended families especially, pairing a valid waiver with a well-structured trust lets you provide for a current spouse during their lifetime while ultimately protecting your children. See how we handle these arrangements in estate planning after a second marriage and through wills and trusts.
Why This Matters for Your Estate Plan
Two takeaways. First, if you're doing your own planning, understand that you cannot simply "write your spouse out" — attempting to do so without a valid waiver invites an elective-share claim that can upend your entire plan. Second, if you're a surviving spouse, know that the will is not necessarily the last word; New York gives you a protected minimum.
Either way, the details — what counts as a testamentary substitute, whether a waiver is valid, whether the deadline has run — are exactly where cases are won and lost. This is not a do-it-yourself area.
When to Call a New York Estate Attorney
Call us if you want to structure a plan that limits a spouse's share the right way, if you're a surviving spouse deciding whether to elect, or if you're an executor facing an elective-share claim against the estate. At Morgan Legal Group, our estate planning and probate teams handle right-of-election issues throughout New York City and the surrounding counties.
For the statute itself, you can review EPTL 5-1.1-A on the New York State Senate website.
Frequently Asked Questions
What is the spousal right of election?
It's a New York rule (EPTL 5-1.1-A) letting a surviving spouse claim a minimum share of the estate — the greater of $50,000 or one-third of the net estate — even if the will leaves them less.
How much is the elective share?
The greater of $50,000 or one-third of the net estate, which includes many testamentary substitutes like joint and POD accounts.
What is the deadline to file?
Generally within six months of the issuance of letters, and no later than two years after death.
Can a spouse waive the right of election?
Yes, through a valid, properly executed prenuptial or postnuptial agreement. It can also be lost through divorce or abandonment.
Does legal separation end the right?
Usually not. Separation alone generally does not eliminate the right of election — the couple typically must be divorced.
