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Can Someone Other Than a Surviving Spouse Exercise Right of Election

Estates, Powers & Trusts Law (“EPTL”) section 5-1.1-A(c)(3) states that the surviving spouse’s right of election is personal to the surviving spouse. However, the following individuals (fiduciaries (when authorized by the court)) can make the election when the surviving spouse is under a disability:

  • The guardian of the property of an infant spouse, when so authorized by the court having jurisdiction of the decedent’s estate.
  • The committee of an incompetent spouse, when so authorized by the court that appointed the committee.
  • The conservator of a conservatee spouse, when so authorized by the court that appointed the conservator.
  • The guardian ad litem for the surviving spouse when so authorized by the court that appointed such guardian.
  • A guardian authorized under Article 81 of the mental hygiene law, when so authorized by the court that appointed the guardian. (see EPTL 5-1.1-A(c)(3)).

The standard that courts will generally use when determining whether it is proper for the listed fiduciaries (above) to exercise the right of election is – is it in the best interest of the spouse to exercise the right.

Another individual that can make the election (although not listed in the statute (EPTL 5-1.1-A(c)(3)) is an attorney-in-fact named in a power of attorney. The Rockland County Surrogate, in the case of In the Matter of Lando (11 Misc.3d 866 (N.Y. Misc. 2006)), stated that the reason an attorney-in-fact is not explicitly listed as an authorized individual is “because to do so would be redundant.” The Surrogate reasoned that the construction provisions of the General Obligations Law (the New York statute which authorizes individuals to create a power of attorney), “must be construed to mean the authority to execute, to acknowledge, to verify, to seal, to file and to deliver any consent, designation, pleading, notice, demand, election, conveyance, release… [and] do any other act or acts . . . with respect to the estate of a decedent . . . in . . . which the principal has, or claims to have, an interest. Thus, the language of the General Obligations Law makes it clear that an agent can do precisely what the agent in this case did: serve and file a notice of election.”

To be continued …

Aaron E. Futterman, CPA, Esq. is a partner in the law firm of Futterman & Lanza, LLP with offices in Smithtown, NY and clients throughout Suffolk, Nassau, Queens, Brooklyn, Bronx, Richmond, New York, Westchester and Rockland Counties. He concentrates his practice to Elder Law, Medicaid Planning, Medicaid Applications, Estate Planning, Probate, Estate Taxes, and Estate Administration.

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