Many Syracuse residents spend significant time and money creating an estate plan, only to discover that New York law places firm limits on their ability to control where every dollar goes. One of the most important protections in the state’s inheritance system is the spousal right of election, a legal safeguard that prevents one spouse from disinheriting the other in a will or trust.

Understanding how this right works is essential for anyone creating or updating an estate plan in Onondaga County or anywhere in the state. Families working with a knowledgeable estate planning attorney in Syracuse, New York, can develop strategies that honor their wishes while remaining compliant with the law. This article explains what the elective share is, how it is calculated, and what steps Syracuse residents can take to plan around it.

What Is the Spousal Right of Election Under EPTL 5-1.1-A?

New York’s Estates, Powers and Trusts Law (EPTL) Section 5-1.1-A grants every surviving spouse a personal right of election against their deceased spouse’s estate. In practical terms, this means a surviving spouse can reject the bequest in a will and instead claim a statutory minimum share. In most Syracuse estates (where the decedent was domiciled in New York), the surviving spouse can claim this right regardless of what the will provides.

If the net estate is worth less than fifty thousand dollars, the surviving spouse is entitled to the full value of that estate. This provision ensures that no matter how a will is drafted, a married person in Syracuse cannot entirely cut their spouse out of the inheritance.

How Is the Net Estate Calculated?

The calculation of the net estate is broader than many people expect. New York law defines the net estate to include not only property that passes through probate but also assets classified as testamentary substitutes. These substitutes are certain non-probate transfers and arrangements that New York treats as part of the elective-share calculation.

Testamentary substitutes can include payable-on-death or transfer-on-death accounts, certain joint property arrangements, some trust transfers where the decedent kept significant rights, retirement/benefit plan interests, and some transfers made within one year of death, generally to the extent they weren’t for full consideration and weren’t covered by key gift-tax exclusions. 

Including these assets means a spouse cannot easily sidestep the elective share by moving wealth into non-probate vehicles. In computing the net estate, debts, administration expenses, and reasonable funeral expenses are deducted, and estate taxes are generally disregarded in computing the net estate, though the spouse may still be responsible for any tax apportionment allocated to them.

Can a Spouse Be Disinherited in New York?

The short answer is generally no, not without the spouse’s consent. New York’s elective share statute is specifically designed to prevent the disinheritance of a surviving spouse. Even if a will explicitly states that a spouse should receive nothing, the surviving spouse retains the right to file an election and claim their statutory share through the Surrogate’s Court with jurisdiction over the estate (for Syracuse, typically the Onondaga County Surrogate’s Court).

There are limited circumstances where the right of election does not apply. A surviving spouse may be disqualified in limited situations under EPTL 5-1.2, including abandonment. For example, Matter of Nichols (Sur. Ct., Kings County, 2013) discusses how difficult it can be to prove ‘constructive abandonment’ in this context.

What Are the Filing Deadlines for an Elective Share Claim?

Timing is critical for any surviving spouse considering the right of election. An elective share claim must be filed within 6 months of the issuance of the letters testamentary or letters of administration. Additionally, claims cannot be filed later than 2 years from the date of the decedent’s death. The Surrogate’s Court can extend the deadline (including, in some cases, relieving a default) under the statute’s specific timing rules and standards

These deadlines are strictly enforced across New York, including in Syracuse and throughout Central New York. A surviving spouse who misses the filing window may lose the right to claim their elective share entirely, unless the court grants permission to file a late notice under exceptional circumstances. The right of election is generally personal to the surviving spouse, though a court-authorized guardian/committee/conservator may elect in limited situations (for example, for an infant or legally incapacitated spouse).

How Can Syracuse Residents Plan Around the Elective Share?

The most straightforward way to address the elective share is through a prenuptial or postnuptial agreement. A properly drafted agreement can include a waiver of the right of election, as long as the waiver meets statutory requirements (generally a written, signed waiver that’s acknowledged/proved like a real-estate conveyance). In practice, independent counsel and full disclosure can help reduce challenges later.

For married couples in Onondaga County who are aligned on their estate goals, coordinated planning can help ensure the surviving spouse receives at least the elective share through intentional distributions rather than through a contested court proceeding. Strategies may include outright bequests to the surviving spouse, properly funded trusts, or beneficiary designations that satisfy the statutory threshold.

Why Does the Elective Share Matter for Estate Planning?

The spousal right of election affects virtually every married person’s estate plan in New York. Failing to account for this right can lead to unintended consequences, including family disputes and costly litigation in Surrogate’s Court. When a surviving spouse exercises the right of election, the will remains valid for the remaining estate, but the distributions to other beneficiaries are reduced proportionally to fund the elective share.

This ripple effect can significantly alter what children, other family members, or charitable organizations ultimately receive from the estate. For Syracuse families with blended households, business interests, or complex asset structures, the elective share creates particular challenges that require careful planning. Addressing these issues proactively is far less expensive and disruptive than resolving them after a death occurs.

The spousal right of election under EPTL 5-1.1-A represents one of the strongest protections for surviving spouses anywhere in the country. Whether you are creating your first estate plan or updating an existing one, understanding how this statute affects your intentions is a necessary step in the process. An experienced estate planning attorney in Central New York can evaluate your specific situation, explain how the elective share applies to your assets, and help you build a plan that achieves your goals within the boundaries of New York law.

Disclaimer: This article is intended for informational purposes only and should not be considered legal advice. For personalized advice regarding estate planning and the spousal right of election, please consult a qualified attorney in your area. The information provided is based on current laws and regulations, which may change over time.