Right of choice of the spouses in case of death of the spouses

Website design By BotEap.comThe New York case and statutory law impose many duties on New York State resident spouses during life; a spouse cannot avoid some of those duties at death. The surviving spouse is entitled to a minimal share of the deceased spouse’s estate.

Website design By BotEap.comThe law carefully defines the amount to which the surviving spouse is entitled. The part to pay cannot be avoided by the majority between living transfers, but like any right, it can be affected by the words and actions of the claimant. The provisions of Estates, Powers and Trusts Act 5-1.1-A (EPTL) affect how the elective action is measured, its character, and from what property it will be paid.

Website design By BotEap.comA spouse’s elective share is equal to the greater of (1) $50,000 or (2) one-third of the net worth. The calculation of a spouse’s elective share is not based on the size of their own assets, regardless of the source of those assets.

Website design By BotEap.comThe elective part is a pecuniary amount, not a fractional part of the estate. Thus, the income obtained by the succession prior to its distribution will not be included, nor will the appreciation or depreciation of the assets of the succession be taken into account. Computing the surviving spouse’s elective share is only part of the process. The part of the testamentary dispositions to which the surviving spouse is entitled is the amount of his elective part, lessened by certain interests that pass to him. The amount thus reduced is equal to the “net elective share” of the surviving spouse.

Website design By BotEap.comA decedent’s estate consists of property passing under his or her will, property passing by intestate distribution under EPTL 4-1.1, plus “probate substitutes” described in EPTL 5-1.1-A(b)(1). A decedent’s net worth is determined by reducing the decedent’s estate for reasonable debts, administrative expenses, and funeral expenses. For purposes of the right of choice, the decedent’s estate includes all of the decedent’s assets wherever located. Therefore, the surviving spouse has the right to choose over the decedent’s real and other property located outside of New York State.

Website design By BotEap.comAll estate taxes must be disregarded when calculating net worth. However, the surviving spouse is not exempt from contributing the amount of such taxes, if any, prorated against him/her under EPTL 2-1.8. Reference to apportionment under EPTL 2-1.8 includes apportionment pursuant to an address in the decedent’s will, which is an apportionment method permitted by EPTL 2-1.8.

Website design By BotEap.comUnless the decedent has stipulated otherwise, taxes will generally not be apportioned against the surviving spouse to the extent that the property passed to him or her qualifies for the spousal deduction. In most cases, property interests that satisfy the elective share will also be eligible for the spousal deduction. Exceptions include property that passes directly to a surviving spouse who is not a US citizen, and cash bequests that, pursuant to an instruction in the will, are used to purchase an annuity for the spouse. Even if the spouse’s party is eligible for the marital deduction, a contribution to estate taxes may be required to the extent that estate taxes are attributed to predeath transactions rather than to property included in the estate. the gross estate.

Website design By BotEap.comNot all obligations are treated as debts for the purposes of defining net worth. If they were, an individual could easily defeat his spouse’s right of choice simply by executing a contract to leave his estate to another individual or individuals. New York courts, for example, have held that the obligation in a separation agreement to leave a portion of a person’s estate or specific property to a former spouse is subordinate to the later spouse’s right of choice. The beneficiary of a bequest contract is often viewed by the courts as a legatee rather than a creditor. In contrast, a decedent’s obligation under a separation agreement to make alimony payments after death is treated as an estate-reducing debt that is subject to the right of election. The distinction between the two is tenuous. A debt that is due on the death of a deceased spouse seems to be somewhere in between the two. It is not clear how it will be treated under EPTL 5-1.1-A.