The most surprising thing many surviving spouses learn after a death in Nassau or Suffolk County is this: in New York, you generally cannot fully disinherit your husband or wife, no matter what the will says. The spousal right of election in Long Island — governed by New York’s Estate Powers and Trusts Law (EPTL) section 5-1.1-A — gives a surviving spouse the power to claim a statutory minimum share of the deceased spouse’s estate, even when the will leaves them nothing or only a token bequest. That share is typically one-third of the net estate, and it reaches far beyond just the assets passing under the will. If you have been left out, shortchanged, or simply want to understand your rights before signing anything, this is the protection New York built specifically for you.
What the Spousal Right of Election Means
The right of election is a creature of statute, not of the will. It reflects a long-standing public policy in New York: a marriage is an economic partnership, and a surviving spouse should not be left destitute by a one-sided estate plan. Under EPTL 5-1.1-A, a surviving spouse may “elect against the will” — meaning they reject what the will gives them (if anything) and instead take their guaranteed statutory share.
The elective share is the greater of $50,000 or one-third of the net estate. The “net estate” here is not just the probate estate. New York deliberately uses a broader concept called the net elective-share estate, which folds in certain non-probate transfers — called “testamentary substitutes” — so a spouse cannot be cut out simply by moving assets outside the will.
This right belongs to the surviving spouse personally. It is a choice, not an automatic distribution. If the spouse does nothing within the statutory window, the right is lost and the will controls. That is why understanding the mechanics — and the deadline — matters so much for Long Island families.
Who Qualifies as a “Surviving Spouse”
Not every person who was married to the decedent qualifies. EPTL 5-1.2 lists circumstances in which a spouse is disqualified from electing, including:
- A final divorce or annulment that was valid in New York.
- A marriage void as incestuous or bigamous.
- Abandonment of the deceased spouse that continued until death.
- Failure to support the deceased spouse when there was a duty to do so.
- A valid separation decree (a mere separation agreement does not automatically disqualify, but it may).
A surviving spouse who validly waived the right in a prenuptial or postnuptial agreement is likewise barred. Absent one of these specific bars, the surviving spouse keeps the right.
The One-Third Elective Share and What Counts
Calculating the elective share is the part that trips up most families. The “net estate” is computed by taking the decedent’s probate property plus testamentary substitutes, then subtracting debts, administration expenses, and reasonable funeral costs. The spouse’s one-third (or $50,000 minimum) is measured against that combined figure.
Testamentary substitutes are the key. They exist precisely to stop disinheritance by re-titling assets. Under EPTL 5-1.1-A(b), they generally include:
| Asset Type | Counts Toward Elective Share? | Notes |
|---|---|---|
| Property in the will (probate estate) | Yes | The starting point. |
| Totten trusts / payable-on-death bank accounts | Yes | “In trust for” accounts are classic substitutes. |
| Joint bank accounts with right of survivorship | Yes (decedent’s portion) | The decedent’s contribution is counted. |
| Jointly owned real property | Yes (decedent’s share) | Common with the Long Island marital home. |
| Gifts made within one year of death | Yes (above the annual exclusion) | Prevents deathbed depletion. |
| Retirement accounts (401(k), IRA, pension) | Partially | Generally counted but at a reduced value; federal ERISA rules can override for spouses. |
| Revocable (living) trusts | Yes | Assets the decedent could revoke are reachable. |
| Life insurance payable to a third party | No | Notably excluded from substitutes. |
| Gifts causa mortis | Yes | Made in contemplation of death. |
Two takeaways for Long Island couples. First, life insurance proceeds are not a testamentary substitute — a spouse cannot reach a policy paid to the children or a sibling. Second, the family home held in joint tenancy is almost always swept in, which matters enormously given Nassau and Suffolk County real-estate values in 2026.
How the Math Actually Works
Once the net elective-share estate is fixed, the surviving spouse is credited with whatever they already receive — under the will, by survivorship, or as a beneficiary — and the estate makes up the difference so the spouse reaches the one-third floor. The election is “ratable,” meaning the shortfall is recovered proportionally from the other beneficiaries and from the substitute recipients, not from any single person.
The Deadline: Six Months You Cannot Miss
The right of election is governed by a strict timetable, and Surrogate’s Court judges enforce it firmly. Under EPTL 5-1.1-A(d), the surviving spouse must serve and file a written notice of election within:
- Six months from the date letters testamentary or letters of administration are first issued; and
- No later than two years after the date of the decedent’s death.
The notice must be served on the personal representative (executor or administrator) and filed with the Surrogate’s Court that issued the letters — in our region, the Nassau County Surrogate’s Court in Mineola or the Suffolk County Surrogate’s Court in Riverhead. A court may grant an extension for reasonable cause if the request is made before the deadline runs, but waiting is dangerous. Miss the window and the right typically vanishes for good.
Practical rule of thumb: the six-month clock starts when the executor is officially appointed, not when your spouse died. If you suspect you may need to elect, calendar the deadline the day letters issue and consult counsel immediately.
Long Island Scenarios Where the Right Matters
Abstract statutes become real fast on Long Island. Consider these common situations.
Scenario 1: The Second Marriage and the Children From the First
A Garden City husband remarries late in life and leaves his entire estate to his three adult children, naming his new wife nowhere in the will. Because they were validly married and she did not waive her rights, she may elect against the will and claim one-third — reaching even the jointly held brokerage account and the revocable trust he funded. The children’s inheritance is reduced ratably to satisfy her share.
Scenario 2: Assets Moved Out of the Will
A Huntington spouse, anticipating estrangement, retitles the marital home into a revocable trust and adds a child as a payable-on-death beneficiary on the bank accounts, leaving an empty probate estate. The surviving spouse is not defeated: the trust and the POD accounts are testamentary substitutes, so they are pulled back into the net estate and the one-third share is calculated against them.
Scenario 3: The Token Bequest
A Massapequa will leaves the surviving wife exactly $50,000 and everything else to a charity. Because one-third of the net estate exceeds $50,000, she can elect and force the estate up to the full one-third. The charity receives less so the statutory floor is honored.
Common Mistakes Surviving Spouses Make
In our experience handling Nassau and Suffolk estates, the same avoidable errors recur. Watch for these:
- Assuming the will is final. Many spouses accept a disinheritance because “that’s what the will says,” never realizing EPTL 5-1.1-A overrides it.
- Missing the six-month deadline. Grief and probate delays eat the calendar quickly. The most common way to lose the right is simply running out of time.
- Forgetting non-probate assets. A spouse may believe the estate is “empty” because everything passed by joint account or trust — exactly the assets the substitute rules recapture.
- Signing waivers without advice. A receipt and release, a settlement, or a poorly understood prenuptial clause can extinguish the right. Read before you sign.
- Improper service. The notice must be properly served and filed; defective service can void the election even if it was timely.
- Confusing the elective share with the homestead or family exemption. EPTL 5-3.1 set-aside property (a car, household items, cash allowance) is separate from and in addition to the elective share.
When to Call a Long Island Estate Attorney
The right of election sounds simple — one-third — but the calculation, the substitute-asset tracing, the disqualification defenses, and the service requirements are genuinely technical. Executors will often resist, and beneficiaries whose shares shrink may litigate the spouse’s eligibility. If you have been left out of a will, offered a suspiciously small bequest, or asked to sign a waiver, you should speak with counsel before the deadline closes. An experienced probate team can compute the true net estate, identify hidden testamentary substitutes, serve a proper notice, and, when necessary, litigate the election in Surrogate’s Court. The attorneys at Morgan Legal Group handle elective-share matters throughout Nassau and Suffolk Counties and can tell you quickly whether electing makes financial sense in your case.
To learn more about how Long Island probate works, see our probate and estate-administration FAQ, read about our approach to Long Island estate matters, or contact our office to discuss your deadline. For the official court forms and filing details, you can also review the New York State Unified Court System’s 10th Judicial District Surrogate’s Court resources covering Nassau and Suffolk.
Estate disputes move on the court’s clock, not yours. If a death in your family has left you wondering whether the will tells the whole story, the safest move in 2026 is to get a clear answer about your elective share well before the six-month window closes.
Frequently Asked Questions
What is the spousal right of election in New York?
It is a statutory right under EPTL 5-1.1-A that lets a surviving spouse reject what a will gives them and instead claim a minimum share of the deceased spouse’s estate — generally the greater of $50,000 or one-third of the net estate. It applies to Long Island estates in Nassau and Suffolk Counties.
How much is the elective share on Long Island?
The elective share equals the greater of $50,000 or one-third of the decedent’s net estate. The net estate includes probate property plus testamentary substitutes such as joint accounts, payable-on-death accounts, and revocable trusts, minus debts and expenses.
Can my spouse completely disinherit me in a will?
Generally no. Even if the will leaves you nothing, EPTL 5-1.1-A lets you elect against the will and claim your one-third statutory share. A spouse can only be cut out entirely through a valid waiver, a disqualifying event under EPTL 5-1.2, or by missing the filing deadline.
What is the deadline to file a right of election?
You must serve and file the notice of election within six months after letters testamentary or letters of administration are issued, and no later than two years after the date of death. The notice is filed with the Nassau County Surrogate’s Court in Mineola or the Suffolk County Surrogate’s Court in Riverhead.
Do joint accounts and trusts count toward the elective share?
Yes. Testamentary substitutes — including joint bank accounts, payable-on-death accounts, jointly held real estate, and revocable living trusts — are pulled back into the net estate. This prevents a spouse from being disinherited by simply moving assets outside the will. Life insurance paid to a third party is a notable exception that does not count.
Who is disqualified from claiming the elective share?
Under EPTL 5-1.2, a spouse may be disqualified by a valid divorce or annulment, a void marriage, abandonment of the decedent that continued until death, failure to support when required, or by validly waiving the right in a prenuptial or postnuptial agreement.
Is the elective share the same as the family exemption?
No. The EPTL 5-3.1 family exemption (set-aside property like a vehicle, household items, and a cash allowance) is separate from and in addition to the elective share. A surviving spouse may be entitled to both.
Which Surrogate's Court handles right-of-election cases on Long Island?
Elective-share matters are filed in the Surrogate’s Court that issued the estate’s letters — the Nassau County Surrogate’s Court in Mineola or the Suffolk County Surrogate’s Court in Riverhead, both within New York’s 10th Judicial District.
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