1. The Surviving Spouse Elective Share (EPTL § 5-1.1-A)
In New York estate administration, a surviving spouse cannot be disinherited. Under Estates, Powers and Trusts Law (EPTL) § 5-1.1-A, the surviving spouse possesses an absolute right of election to receive the greater of $50,000 or one-third (1/3) of the decedent's Net Estate.
2. The Augmented Net Estate & Testamentary Substitutes
Crucially for financial disclosure, the elective estate is not limited to probate assets. EPTL § 5-1.1-A(b) includes all Testamentary Substitutes:
- Gifts made in contemplation of death (causa mortis);
- Totten trust bank accounts;
- Joint bank accounts and brokerage accounts with rights of survivorship;
- Property held in revocable living trusts;
- Retirement plans, 401(k)s, and deferred compensation annuities;
- Gifts exceeding $18,000 made within 1 year of death.
3. Sworn Financial Disclosure in Surrogate's Court (SCPA Article 22)
To determine the exact dollar value of the 1/3 elective share, estate fiduciaries and surviving spouses must file comprehensive verified accountings and asset disclosure schedules under SCPA Article 22, detailing all probate assets and testamentary substitutes alongside funeral and administration liabilities.