Beneficiary Rights & Spousal Right of Election

Being named in a will makes you a beneficiary, but it does not make you powerless while you wait. New York law gives beneficiaries — and surviving spouses in particular — concrete rights during the period between a death and the final distribution of an estate. This page explains what those rights are and how to use them.

What a Beneficiary Is Entitled To

A beneficiary awaiting distribution generally has the right to be notified of the probate proceeding, to receive a copy of the will once it is filed, to be kept reasonably informed by the executor, and ultimately to receive the share the will leaves to them. The executor owes fiduciary duties to the beneficiaries and must not favor themselves or waste estate assets. When those duties are ignored, the SCPA provides mechanisms — including a petition to compel an accounting — to force transparency.

The Surviving Spouse Is a Special Beneficiary

New York treats a surviving spouse differently from other beneficiaries. Even if a will leaves the spouse little or nothing, the spouse cannot simply be disinherited. The EPTL grants a surviving spouse the right of election, a protective floor that overrides what the will says.

The Right of Election Under EPTL 5-1.1-A

Under EPTL 5-1.1-A, a surviving spouse may elect to take an elective share equal to the greater of $50,000 or one-third of the net estate. Critically, the elective share is measured against an augmented estate that can include certain assets passing outside the will — such as some joint accounts and other testamentary substitutes — so that a spouse cannot be defeated simply by moving property around the will. The election is a powerful tool for a surviving spouse who would otherwise be shortchanged.

Acting Within the Deadline

The right of election is not automatic. A surviving spouse must affirmatively exercise it within the statutory time frame after letters are issued, by serving and filing the proper notice in the Surrogate’s Court. Missing the window can forfeit the right entirely, which is why a spouse awaiting distribution should evaluate this option early rather than waiting to see what the executor offers.

When Beneficiaries Disagree With the Executor

• Demand an accounting if you cannot see what the estate holds or spends.
• Object to improper distributions that shortchange your share.
• Seek removal of a fiduciary who is dishonest or grossly neglectful.
• Assert the elective share if you are a surviving spouse facing disinheritance.

Consult a New York Attorney

This page describes general New York beneficiary and spousal rights and is not legal advice. The elective share calculation and its deadlines turn on the specific facts and assets of each estate. Consult a licensed New York attorney before taking action.