Should I Take the Elective Share or Accept the Will?

As a surviving spouse, you may be well aware that New York State offers you the right to claim a portion of your deceased spouse’s estate via the elective share. But just because you are granted this legal option does not necessarily mean that you should pursue it. That is, taking the elective share should be a strategic financial decision rather than an emotionally-charged one. With all these things considered, please follow along to find out whether you should petition for an elective share and how a proficient estate planning attorney in Putnam County, at the Law Office of Andres D. Gil, PLLC, can help you make accurate calculations to determine if this legal step is worth your efforts.

Should I take the elective share or accept what the will gives me?

First of all, in New York State, the elective share gives a surviving spouse the chance to claim $50,000 or one-third of their deceased spouse’s estate, whichever is greater. So, obviously, if your deceased spouse left less than this amount for you in their will document (i.e., one-quarter of the estate), you may assume that choosing to elect may significantly increase what you receive. This is especially because your deceased spouse’s “net estate” may include non-probate assets that are not mentioned in their will, such as their life insurance policy, retirement account(s), jointly-owned real estate property, trust(s), payable-on-death account(s), etc.

On the other hand, after speaking with us, we may advise you to forgo claiming the elective share, even if it is more considerable at face value. This is because we may want to protect you from conflicts with other heirs that may trigger formal estate litigation proceedings. For example, when claiming rights to your deceased spouse’s “net estate,” you may be inadvertently going after funds in a trust or another type of account that was specifically designated to another beneficiary. And so, in the grand scheme of things, we may calculate and provide an educated guess that what you would receive under the will would be more than what you would receive through an election, given the legal costs and time involved in such a dispute.

Can the estate challenge or deny my elective share claim?

In addition to prospective heirs, you may also have to worry about the estate’s executor fighting to challenge or deny your elective share claim. This may be especially likely if a considerable difference in property and assets is at stake if this petition goes through. At this time, they may make arguments for why you are ineligible to receive the elective share. For example, they may claim that you signed a prenuptial agreement, postnuptial agreement, or settlement agreement that essentially waived your elective share rights.

While it may mean extra legal costs and wasted time, this may be a case where we encourage you to continue battling for your elective share. Given this same example, you may have legitimate proof that you signed this agreement under threats, coercion, or pressure, without full disclosure, or without the proper legal formalities. So, if you are ready to step foot into this legal path, do not do so until you have retained a talented estate planning attorney in Putnam County at the Law Office of Andres D. Gil, PLLC. We look forward to your phone call and to taking on your case.