Spousal Rights and the Elective Share: NYC Couples’ Costly Mistakes

One of the most misunderstood rules in New York estate planning is that you generally cannot fully disinherit your spouse. New York’s elective share gives a surviving spouse the right to claim a statutory minimum from the deceased spouse’s estate, regardless of what the will says. For Manhattan couples, especially in second marriages or where one spouse holds the co-op, misunderstanding this rule leads to expensive surprises in Surrogate’s Court.

Mistake #1: Thinking the Will Has the Final Word

Couples often assume that if the will leaves the spouse a small bequest or nothing, that is binding. It is not. Under New York’s elective share, the surviving spouse may elect to take a statutory share against the will. Drafting around your spouse without accounting for this right simply invites a contest in New York County Surrogate’s Court.

Mistake #2: Ignoring the Augmented Estate Concept

A frequent error is trying to defeat the elective share by moving assets out of the probate estate, into trusts, joint accounts, or beneficiary designations. New York law reaches many of these transfers as testamentary substitutes and counts them when calculating the spouse’s share. You generally cannot sidestep the elective share with clever titling, and attempting it usually backfires.

Mistake #3: Missing the Election Deadline

The right to elect is not automatic; the surviving spouse must affirmatively make the election within the statutory time frame after letters are issued in the SCPA proceeding. Manhattan surviving spouses sometimes wait too long, grieving or assuming the estate will handle it, and lose the right entirely. Calendar the deadline immediately.

Mistake #4: Assuming It Applies in Every Situation

The elective share protects a legal spouse. It does not protect unmarried partners, no matter how long the relationship. Manhattan couples who choose not to marry must plan affirmatively through wills, trusts, and beneficiary designations, because New York’s intestacy rules under EPTL Article 4 and the elective share will not help an unmarried partner.

Mistake #5: Skipping a Waiver in Second Marriages

If spouses genuinely want to limit each other’s claims, perhaps to protect children from a prior marriage, the elective share can be waived, but only through a valid written agreement that meets New York’s requirements. Verbal understandings or informal notes do not work. Second-marriage couples in NYC who skip a proper waiver often see their plan unravel.

Mistake #6: Forgetting the Spouse in the Plan

Even when you intend to provide for your spouse, failing to coordinate the will, trust, and designations can leave the spouse positioned to elect against your plan and disrupt gifts to others. Plan with the spousal right in view from the start.

Talk to a New York Attorney

The elective share, testamentary substitutes, and valid waivers are technical and fact-specific. Before drafting around a spouse or relying on titling, consult a licensed New York estate planning attorney familiar with Manhattan estates.