Inheritance law in New York is full of defaults that override personal wishes when people haven't planned ahead. A spouse who gets less than they expected. A long-term partner who gets nothing. Children from a first marriage who end up competing with a second spouse. Siblings who inherit from a sibling they haven't spoken to in 20 years.
None of this happens because of malice. It happens because New York's Estates, Powers and Trusts Law (EPTL) has rules that kick in when there's no plan — or when a plan doesn't account for how the law actually works.
Here's what you actually need to know about New York inheritance law.
The EPTL: New York's Foundational Inheritance Law
The Estates, Powers and Trusts Law is the statutory framework that governs how property passes at death in New York. It covers:
- Intestate succession (distribution when there's no valid will)
- The surviving spouse's elective share rights
- Rules for how wills must be executed to be valid
- Trust law and fiduciary duties
- Rules about when and how beneficiaries can disclaim inheritances
- Anti-lapse provisions (what happens when a beneficiary predeceases the testator)
Understanding the EPTL matters even if you have a will. Some EPTL provisions can override what your will says — specifically the elective share. Others fill in gaps where your will is silent. The law is always lurking in the background.
What Happens When Someone Dies Without a Will in New York
Dying without a valid will is called dying "intestate." When this happens, New York's intestacy statutes — EPTL Section 4-1.1 — determine who inherits and how much.
The formula is based purely on legal relationship. It doesn't consider who was close to the deceased, who provided care, who has financial need, or what the deceased would have wanted. Here's how it works:
| Surviving Family Members | Who Inherits |
|---|---|
| Spouse only (no children) | Spouse gets everything |
| Spouse and children | Spouse gets first $50,000 + 50% of remainder; children split the other 50% |
| Children only (no spouse) | Children split everything equally |
| No spouse, no children | Parents inherit |
| No spouse, children, or parents | Siblings inherit equally |
| None of the above | More distant relatives, by statutory formula; ultimately escheats to the state if no relatives found |
Who Gets Nothing Under Intestacy
Several people with strong practical relationships get nothing under intestacy:
- Unmarried partners — Even a partner of 30 years who lived with the deceased, raised children together, and shared finances gets zero. New York intestacy law doesn't recognize unmarried relationships.
- Stepchildren who weren't legally adopted — A stepchild who was raised by the deceased from infancy but never formally adopted has no intestate rights.
- Friends and caregivers — No matter how close the relationship or how much care was provided.
- Charitable organizations — Any charitable giving the deceased would have wanted requires a will.
If you have an unmarried partner, stepchildren you consider your own, or charitable giving intentions — you need a will. Intestacy will not protect any of these relationships or intentions. It distributes based on formal legal status only.
The Surviving Spouse's Elective Share
New York law gives a surviving spouse the right to claim a minimum share of the deceased spouse's estate — regardless of what the will says. This is called the "right of election," and it's governed by EPTL Section 5-1.1-A.
The elective share is one-third of the "net estate." But "net estate" in New York has a specific meaning that most people don't realize: it includes not just probate assets, but also "testamentary substitutes" — certain assets that pass outside the will but are still included in the calculation.
What Counts as a Testamentary Substitute?
Under EPTL Section 5-1.1-A, testamentary substitutes include:
- Joint property with right of survivorship (other than jointly held with the surviving spouse)
- Totten trusts (payable-on-death bank accounts)
- Trust property created by the deceased during their lifetime
- Retirement account proceeds (subject to federal preemption rules)
- Life insurance proceeds (in certain circumstances)
- Transfers within one year of death (gifts exceeding $13,000 per donee per year)
The practical effect: you can't effectively disinherit a surviving spouse by moving all your assets into joint accounts or trusts. The elective share calculation captures those assets regardless.
How the Election Works
A surviving spouse has nine months from the date of death (or six months from the issuance of Letters Testamentary, whichever is later) to file a Notice of Election with Surrogate's Court. Once filed, the spouse is entitled to receive a third of the net estate — calculated with all testamentary substitutes included.
Spouses don't always exercise the elective share. If the will already provides more than a third, there's no reason to. The election is a floor, not a ceiling.
Elective share planning matters in second marriages and blended families, where the deceased may have wanted to leave assets to children from a first marriage rather than to the current spouse. Strategic estate planning — including prenuptial agreements — can address these situations. But ignoring the elective share when planning for blended families is a significant mistake.
Rights of Children Under New York Inheritance Law
Children vs. Descendants
New York's intestacy law generally refers to "issue" — meaning descendants, including children, grandchildren, and so on. If a child predeceases the parent, that child's share passes to their descendants by representation (per stirpes).
Non-Marital Children
Children born outside of marriage have the same inheritance rights as marital children in New York — but only if certain conditions are met for paternity:
- The father acknowledged the child in writing
- Paternity was established by court order during the father's lifetime
- The father signed the birth certificate
- There's clear and convincing evidence of open and notorious acknowledgment
For a child's inheritance from their mother, no special conditions apply — maternity is generally established by birth.
Adopted Children
Under EPTL Section 2-1.3, an adopted child is treated as the natural child of the adoptive parent for all inheritance purposes. An adopted child inherits from their adoptive family, not from biological relatives (with limited exceptions).
No Right to Inherit for Children from a Parent's Estate
Unlike a surviving spouse, children have no elective share rights under New York law. A testator can disinherit a child entirely through a properly drafted will — though this should be done explicitly, since omitting a child from a will can create ambiguity about whether it was intentional.
One important exception: if a will was drafted before a child was born or adopted, New York's "after-born child" rules under EPTL Section 5-3.2 may give that child an intestate share, unless the will clearly indicates the parent intended to exclude children born or adopted after the will's execution.
New York Estate Tax vs. Inheritance Tax
New York has an estate tax — a tax on the estate of the deceased. It does not have an inheritance tax — a tax on the person who receives the inheritance.
The distinction matters. In New York, the person who inherits pays no state income tax on the inheritance itself (though inherited retirement accounts create income tax obligations as distributions are taken). The estate's tax liability is paid before distribution, reducing what beneficiaries receive.
New York Estate Tax (2025)
New York's estate tax exemption is $7.16 million per person. Estates below this threshold pay no New York estate tax. Estates above it pay a graduated rate up to 16%.
The "cliff": if the estate exceeds 105% of the exemption ($7.518 million), the entire estate is subject to tax — not just the excess. This creates planning urgency at the margins.
Married couples can use the federal portability election for federal estate tax purposes (the deceased spouse's unused federal exemption can be transferred to the surviving spouse). New York does not have portability — each person's New York exemption is separate and doesn't transfer to the surviving spouse.
Disclaimers: Refusing an Inheritance
Sometimes inheriting property creates problems — tax exposure, Medicaid eligibility issues, or assets that the beneficiary doesn't want or can't use. New York's EPTL allows a beneficiary to "disclaim" an inheritance — formally refuse it — within nine months of the decedent's death.
A qualified disclaimer under EPTL Section 2-1.11 means the beneficiary is treated as if they predeceased the testator. The disclaimed property passes to whoever would have received it next — which, depending on the will's terms, might be the next contingent beneficiary or the remaining beneficiaries by intestacy.
Disclaimers can be useful in estate tax planning (moving assets to a lower-taxed recipient), Medicaid planning (a spouse refusing an inheritance to allow the other to qualify for Medicaid, though this is more complex), and simple situations where the original beneficiary is better off without the asset.
When Multiple States Are Involved
New York law governs the transfer of real property located in New York, regardless of where the deceased lived. A Florida resident who owns a Manhattan apartment faces New York probate for that property — a separate "ancillary probate" proceeding in New York even if the main probate is in Florida.
This is one of the primary reasons New York-based property owners benefit from a revocable living trust — the trust holds the New York real estate and avoids ancillary probate entirely. See our guide on what is a living trust in New York for how this works.
For personal property, the law of the deceased's domicile generally governs — meaning a New York resident's bank accounts and investment accounts are governed by New York law even if the accounts are at institutions headquartered elsewhere.
Planning Around Inheritance Laws
New York's inheritance laws set defaults. Good estate planning overrides those defaults where your wishes are different.
A will lets you dictate exactly who gets what — within limits (you can't completely disinherit a spouse, and there are rules about specific situations). A trust can accomplish distribution goals with more privacy, less delay, and without the default rules of intestacy ever coming into play.
Beneficiary designations on retirement accounts and life insurance override both intestacy rules and your will. The person named on the form gets the money — period. Review them regularly.
For a full understanding of how wills and trusts interact with New York inheritance law, see our guide on understanding wills and trusts in New York. And if you're wondering how to avoid probate — the court process that intestacy requires — see how to avoid probate in New York.
Common Scenarios That Surprise Families
After 20-plus years of estate planning, here are the intestacy outcomes that most often shock the families I work with:
Scenario 1: The Unmarried Couple
Marcus and Deborah lived together in a Crown Heights brownstone for 22 years. Marcus owned the brownstone in his name. They never married. When Marcus died without a will, the brownstone went to his son from a prior relationship — not to Deborah, who had lived there for two decades. She had no legal claim. A simple will would have changed everything.
Scenario 2: The Blended Family Split
Victor had children from a first marriage and a second wife. He died with a $1.2 million estate and no will. His second wife got $50,000 plus half of the remainder ($575,000). His children from the first marriage got the other $575,000 — which Victor would have wanted to go mostly to his second wife during her lifetime. Without a will, the formula split the estate in a way he never would have chosen.
Scenario 3: The Minor Children Problem
A Staten Island couple died in a car accident leaving three children under 10. No will. The children's maternal grandmother was appointed guardian of the person (to raise them) and a court-appointed guardian of the property was required to manage the inheritance — with annual court accountings, until each child turned 18, at which point they received their share outright. A trust and guardian designation in a will would have handled all of this privately and on the parents' terms.
For New York parents specifically, these scenarios underscore why estate planning is non-negotiable. See our guide on estate planning for parents in New York for the full picture.
Getting Your Plan in Order
New York's inheritance laws are sophisticated, and the interactions between intestacy, the elective share, beneficiary designations, and trust structures create real complexity. A properly designed estate plan accounts for all of these — so your wishes govern, not the legislature's defaults.
At Morgan Legal Group, we've helped more than 5,000 New York families ensure their assets go where they intend — through wills, trusts, and coordinated planning that works with New York's inheritance laws, not against them.
The cost of good estate planning is a fraction of the cost of poor planning — or no planning at all. The stories above aren't hypotheticals. They're what happens every week in Surrogate's Courts across the five boroughs.
