Love and Marriage. Death and Taxes. Each of these issues are recurrent themes in estate administration and litigation. One area in which this becomes particularly complex is where a decedent fails to provide (or adequately provide) for his or her surviving spouse by will. It is the long-standing public policy of New York that a decedent cannot wholly disinherit a spouse. At a minimum, a surviving spouse is entitled to elect to receive $50,000 or one-third of the net estate outright by exercising what is known as the right of election.

The public policy is fairly straightforward; however, the logistics of calculating the elective share and the correlating tax consequences of that election can be complex. This article seeks to review the effect of exercising a right of election, how to calculate the elective share and the consequences to the other beneficiaries of the estate.

Right of Election

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