New York Elective Share and a Surviving Spouse: EPTL 5-1.1-A, 5-3.1 and 4-1.1

By Rozsa Gyene, California estate planning attorney, State Bar of California #208356. Published October 1, 2026. Last reviewed October 1, 2026.

This guide follows the three sections in the order a surviving spouse meets them: the items set off at once, the intestate share when there is no will, and the election against a will or a trust that leaves the spouse too little. Every rule is cited to the Estates, Powers and Trusts Law (EPTL) or Surrogate's Court Procedure Act (SCPA) section it comes from, read on the New York State Senate's consolidated laws site. It is general information, not advice about a particular marriage or estate.

Who counts as a surviving spouse

A husband or wife is a surviving spouse for the purposes of 4-1.1, 5-1.1-A, 5-3.1 and the related sections unless it is established to the court's satisfaction that a final decree of divorce, annulment or dissolution recognized in New York was in effect at the death; that the marriage was void as incestuous, bigamous or a prohibited remarriage; that the spouse procured a divorce or annulment outside the state that New York does not recognize; that a decree of separation recognized in New York was rendered against the spouse and was in effect at the death; that the spouse abandoned the deceased spouse and the abandonment continued until death; or that the spouse, having the duty to support the other, failed or refused to do so despite having the means, unless support was resumed and continued until death (EPTL 5-1.2).

The family exemption: EPTL 5-3.1

If a person dies leaving a surviving spouse or children under the age of twenty-one years, the following items of property are not assets of the estate but vest in, and shall be set off to, the surviving spouse, unless disqualified under 5-1.2; if there is no spouse or the spouse is disqualified, they vest in the decedent's children under twenty-one (5-3.1(a)):

• All housekeeping utensils, musical instruments, sewing machine, jewelry unless disposed of in the will, clothing of the decedent, household furniture and appliances, electronic and photographic devices, and fuel for personal use, not exceeding in aggregate value twenty thousand dollars, excluding items used exclusively for business (5-3.1(a)(1)).
• The family bible or other religious books, family pictures, books, computer tapes, discs and software, audio tapes, record albums and other electronic storage devices used by the family, not exceeding in value two thousand five hundred dollars (5-3.1(a)(2)).
• Domestic and farm animals with their necessary food for sixty days, farm machinery, one tractor and one lawn tractor, not exceeding in aggregate value twenty thousand dollars (5-3.1(a)(3)).
• One motor vehicle not exceeding in value twenty-five thousand dollars; if every vehicle the decedent owned is worth more, the spouse or children may take one by paying the estate the excess over $25,000, or may elect to receive cash equal to the vehicle's value up to $25,000 (5-3.1(a)(5)).
• Money, including cash, checking, savings and money market accounts, certificates of deposit and marketable securities, not exceeding in value twenty-five thousand dollars, reduced by the excess value, if any, of the items in paragraphs (1), (2), (3) and (5) the family acquires; where assets are insufficient to pay the reasonable funeral expenses, the personal representative must first apply this money to any deficiency in them (5-3.1(a)(6)).

The spouse or children may acquire items in paragraphs (1), (2) and (3) above those values by paying the estate the amount by which the value exceeds them (5-3.1(a)(4)). No allowance is made in money or other property if the items do not exist at death (5-3.1(b)); the set-off is deemed reasonably required for the support of the spouse or children during the settlement of the estate (5-3.1(c)); and value means fair market value reduced by liens and encumbrances (5-3.1(d)). New York has no separate homestead allowance in these sections. Because the set-off is not part of the estate, it is excluded when measuring a small estate for voluntary administration (SCPA 1301), and a surviving spouse who is paid up to $30,000 of a bank balance or similar debt directly under SCPA 1310 need not account for it to the extent of the 5-3.1 exemption.

The intestate share: EPTL 4-1.1

Property of a decedent not disposed of by will is distributed under 4-1.1. If the decedent is survived by a spouse and issue (children, grandchildren and further descendants), the spouse takes fifty thousand dollars and one half of the residue, and the balance goes to the issue by representation; if survived by a spouse and no issue, the whole goes to the spouse (4-1.1(a)(1) and (2)). If there is no spouse, the whole goes to the issue by representation, then to the surviving parent or parents, then to the issue of the parents by representation, and then to grandparents and their issue under the rules in 4-1.1(a)(3) through (7). By representation, defined in EPTL 1-2.16, divides the property into equal shares at the nearest generation with a surviving member, gives each survivor in that generation one share, and combines the shares of deceased members and divides them among their issue the same way. Relatives of the half blood are treated as whole blood, a child conceived before death but born after it takes as if born in the decedent's lifetime, adopted children take under the Domestic Relations Law, and the spouse's distributive share is in lieu of dower (4-1.1(b) to (e)). The spouse also has first priority to receive letters of administration (SCPA 1001) and to act as voluntary administrator of a small estate (SCPA 1303).

The elective share: EPTL 5-1.1-A

Where a decedent dies on or after September 1, 1992 and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent's estate (5-1.1-A(a)). The elective share is the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate (5-1.1-A(a)(2)). The net elective share is that amount reduced by the capital value of any interest that passes absolutely from the decedent to the spouse, by will, by intestacy or through a testamentary substitute (5-1.1-A(a)(4)); when the spouse elects, any interest that does not pass absolutely (such as a life interest in a trust) is treated as though the spouse had died immediately before the decedent, unless the decedent provided otherwise (5-1.1-A(a)(4)(A)). The decedent's estate includes all property of the decedent wherever situated (5-1.1-A(c)(7)).

Testamentary substitutes

The estate against which the share is measured includes the capital value of the property described in 5-1.1-A(b)(1), which treats as testamentary substitutes: gifts causa mortis; transfers made within one year of death to the extent the decedent did not receive adequate and full consideration, other than the portion excludible from taxable gifts under the Internal Revenue Code; savings account trusts; joint deposits with survivorship made after August 31, 1966; property held in joint tenancy or with a right of survivorship; property over which the decedent kept possession, enjoyment, the income or a power to revoke, consume or invade, which covers a revocable living trust; retirement plan and pension benefits, except one half of certain defined contribution plan benefits; property subject to a general power of appointment; and securities registered in transfer on death form under Part 4 of Article 13. For joint property the decedent's contribution is counted, and a surviving spouse is conclusively presumed to have contributed one half (5-1.1-A(b)(2)). The rights of creditors are not impaired (5-1.1-A(b)(5)).

How the share is paid

When the spouse elects, the will or other instrument remains valid as to the residue after the spouse's share is deducted (5-1.1-A(c)(1)), and the beneficiaries contribute ratably to the share unless the will provides otherwise, in cash or in the specific property received (5-1.1-A(c)(2)). The election is personal to the spouse but may be made, when the court authorizes it, by the guardian of the property of an infant spouse, the committee of an incompetent spouse, the conservator of a conservatee spouse, a guardian ad litem for the spouse, or a guardian appointed under Article 81 of the Mental Hygiene Law (5-1.1-A(c)(3)). The right is not available to the spouse of a decedent who was not domiciled in New York unless the decedent elected to have New York law govern under 3-5.1(h) (5-1.1-A(c)(6)), and an election is in lieu of any right of dower (5-1.1-A(c)(8)).

The deadlines

An election must be made within six months from the date of issuance of letters testamentary or of administration, but in no event later than two years after the date of the decedent's death, by serving written notice on the personal representative (or on the person named as executor in a will on file that has not yet been admitted to probate) and filing the original, with proof of service, in the Surrogate's Court within that time (5-1.1-A(d)(1)). The time may be extended, before it expires, by order of the Surrogate's Court for a further period not exceeding six months on any one application, and the court may relieve the spouse from a default so long as no decree settling the representative's account has been made, twelve months have not elapsed since letters issued, and two years have not elapsed since the death (5-1.1-A(d)(2)). The time limits are exclusive and not suspended, except that the surrogate may permit the election of an infant or incompetent spouse up to the decree on the first judicial account (5-1.1-A(d)(3)).

Waiving the right: 5-1.1-A(e)

A spouse, during the lifetime of the other, may waive or release the right of election against a particular or any last will or testamentary substitute made by the other spouse, and a waiver or release of all rights in the estate of the other spouse is a waiver of the right of election (5-1.1-A(e)(1)). To be effective the waiver or release must be in writing and subscribed by the maker, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property (5-1.1-A(e)(2)). It is effective whether executed before or after the marriage, whether unilateral or bilateral, whether or not supported by consideration, and whether absolute or conditional (5-1.1-A(e)(3)). A waiver of survivor benefits under sections 401(a)(11) or 417 of the Internal Revenue Code counts as a waiver against those testamentary substitutes (5-1.1-A(e)(4)). This is how a prenuptial or postnuptial agreement changes the outcome.

What a living trust does and does not change

A revocable living trust keeps property out of probate, but it does not defeat the elective share: property over which the decedent kept the income or a power to revoke is a testamentary substitute under 5-1.1-A(b)(1)(F) and is counted in the estate the spouse may elect against. The same is true of joint accounts, survivorship real estate and, under Real Property Law 424(14), property passing by a transfer on death deed, which remains liable for a statutory allowance to a surviving spouse or child for eighteen months after death. For most married couples the point is the opposite one: a joint trust that provides for the survivor, with the family exemption and intestate share as the floor, leaves no election to make. The New York living trust page describes the joint plan.