Taxes, Cash & Savings · Surprise rank #74
Left Out of Your Spouse's Will? NY Can Still Give a Surviving Spouse at Least $50,000 or One-Third
New York's elective-share law prevents most married people from completely disinheriting a surviving spouse.
Who
A qualifying surviving spouse of a New York decedent when the elective-share right has not been waived or otherwise lost.
What to do
Start here: Contact the Surrogate's Court or an estate attorney immediately before signing releases or accepting distributions, because election rights are deadline-sensitive.
Eligibility: The claimant must be a legally qualifying surviving spouse and follow Surrogate's Court procedures. Prenuptial/postnuptial waivers and statutory disqualification rules can affect the right.
What you get
A surviving spouse can elect against the deceased spouse's estate and certain testamentary substitutes.
Benefit: The elective share is generally the greater of $50,000 or one-third of the net estate, subject to statutory calculations and offsets.
Possible value: At least the statutory share when the estate is large enough, subject to estate debts, expenses and the elective-share calculation.
Good to know
Important: The one-third calculation is not simply one-third of every asset. Debts, administration expenses, reasonable funeral expenses, testamentary substitutes and prior benefits to the spouse can affect the result.
Availability: Active legal right
Why people miss it: People may assume the will controls everything and not know New York gives a surviving spouse a statutory election against it.
Sources reviewed: Aug 10, 2026