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Spousal Elective Share Law in New York

In New York, a surviving spouse can elect the greater of $50,000 or one-third of the net estate, within 6 months after letters are issued and no later than 2 years after death.

Last checked . General information, not legal advice.

New York at a glance

Elective share
Greater of $50,000 or 1/3 of the net estate
If the net estate is under $50,000, the share is the whole net estate. Certain lifetime transfers (testamentary substitutes) count.
Deadline to elect
6 months after letters issue (max 2 years after death)
The surrogate's court can extend the time if asked before it expires.
Community property state
No
Not on the IRS list of community property states.

Sources

Last checked

The rules in New York

How much can a surviving spouse claim in New York if left out of the will?

Elective share in New York: Greater of $50,000 or 1/3 of the net estate. If the net estate is under $50,000, the share is the whole net estate. Certain lifetime transfers (testamentary substitutes) count.

What is the deadline to claim the elective share in New York?

Deadline to elect in New York: 6 months after letters issue (max 2 years after death). The surrogate's court can extend the time if asked before it expires.

Is New York a community property state?

No. Community property state in New York: no. Not on the IRS list of community property states.

Where do the New York spousal elective share laws come from?

The rules above come from N.Y. Est. Powers & Trusts Law 5-1.1-A. Each source is linked on this page. We last checked them in October 2026.

What this means in practice

The election is not automatic. A surviving spouse who wants the elective share usually must file a written election with the probate court, and serve notice on the personal representative, before a deadline. Missing the deadline can mean losing the right to elect.

Taking the elective share often means giving up gifts under the will and sometimes other benefits. Comparing what the will provides against the statutory share, including any trusts, life insurance or joint accounts that may count toward the share, helps show whether an election makes sense.

Spouses can often waive elective share rights in a written prenuptial or postnuptial agreement signed with full disclosure. If a waiver is part of an estate plan, the will, trust and marital agreement should be drafted to work together, and a local attorney can confirm the formal requirements.

General information, not legal advice. Laws change, and cities can add their own rules, so check the current statute before you rely on it.