Under the New York Estates Power and Trust Law section 5-1.1A, a surviving
spouse cannot be disinherited by virtue of a will. If a will does not
provide for a spouse, he or she may file a “Right of Election”
with the Surrogate’s Court where the decedent’s estate is,
or if there is no proceeding, the county where the decedent lived. This
allows the surviving spouse to forcibly take the greater of $50,000 or
one-third the value of the estate.
Further, certain vehicles used in estate planning to avoid having to go
through probate, or the Surrogate’s Court, will be brought back
into the estate for the purpose of calculating a surviving spouse’s
elective share. For example, vehicles such as trusts and retirement accounts
will not be considered part of the estate for purposes of distribution
under a will; however, they will be used in calculating the value of the
estate to which a surviving spouse may be entitled.