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A surviving spouse cannot be disinherited by virtue of a will

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.

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