In New York, a surviving spouse has a statutory right to claim an "elective share" of the deceased spouse's estate, regardless of the provisions in the decedent's will or other estate planning documents. This right is designed to prevent one spouse from disinheriting the other.
The elective share is the greater of $50,000 or one-third of the decedent's net estate. The net estate includes probate assets and certain non-probate assets known as testamentary substitutes.
This leads to an important question in estate planning: Can the use of an irrevocable trust protect assets from the surviving spouse’s right of election?
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