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Estate Planning- The Right of Election, How to Make the Election

A surviving spouse can elect from the decedent’s spouses estate if he or she chooses to do so. The procedure to exercise the right of election is described in Estates, Powers & Trusts Law (“EPTL”) section 5-1.1A(d).

Time frame: An election must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be, but in no event later than two years after the date of decedent’s death.

  • The time to make such election may be extended before expiration by an order of the surrogate’s court.
  • If the spouse defaults in filing such election within the time provided, the surrogate’s court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters.

How notice is given: the exercise of the right of election must be:

  • Written
  • Served upon any personal representative in the manner herein provided, or upon a person named as executor in a will on file in the surrogate’s court in a case where such will has not yet been admitted to probate,
  • Original notice shall be filed and recorded, with proof of service, in the surrogate’s court in which such letters were issued within six months from the date of the issuance of letters but in no event later than two years from the date of decedent’s death.
  • Notice may be served by mailing a copy thereof, addressed to any personal representative, or to the nominated executor, as the case may be, in such other manner as the surrogate may direct.

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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