If I was left out of my husband’s Will, how do I file for my elective to get what is due me as a surviving spouse?
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If I was left out of my husband’s Will, how do I file for my elective to get what is due me as a surviving spouse?
Asked on November 15, 2014 under Estate Planning, New York
Answers:
M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney
Answered 10 years ago | Contributor
The right of election falls under the NY Estates Power and trust Law (EPTL) section 5-1.1. I am going to copy that portion of the section here that applies. It is long but you need to read it. You need to serve written notice under the law within six months from the date of issuance of Letters testamentary or administration. I would go down to the appropriate Surrogate's Court and see if they have a form you can use. Any written Notice by certified Mail should do so long as the information therein complies with the statute. This is considered estate litigation and you may want to consult an attorney. Good luck.
(e) Procedure for exercise of right of election. (1) An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, as the case may be. Written notice of such election shall be served upon any personal representative in the manner herein provided, or upon a person named as executor in a will on file in the surrogate's court in a case where such will has not yet been admitted to probate, and the original thereof shall be filed and recorded, with proof of service, in the surrogate's court in which such letters were issued within six months from the date of the issuance of letters. Such notice may be served by mailing a copy thereof, addressed to any personal representative, or to the nominated executor, as the case may be, at the place of residence stated in the designation required by SCPA 708 or in such other manner as the surrogate may direct. (2) The time to make such election may be extended before its expiration by an order of the surrogate's court from which such letters issued for a further period not exceeding six months upon any one application. If a spouse defaults in filing such election within six months from the date of issuance of such letters, the surrogate's court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of letters. An application for relief from a default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct. A certified copy of such order shall be indexed and recorded in the same manner as a notice of pendency of an action in the office of the clerk of each county in which real property of the decedent is situated. (3) The time limited in this paragraph for making an election is exclusive and shall not be suspended or otherwise affected by any provision of law, except that the surrogate may, in his discretion, permit an election to be made in behalf of an infant or incompetent spouse at any time up to, but not later than, the entry of the decree of the first judicial account of the permanent representative of the estate, made more than seven months after the issuance of letters.
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