Defeating The Right of Election in EPTL § 5-1.1-A

Law Offices of David L. Silverman

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Under Estates, Powers & Trusts Law (EPTL) § 5-1.1-A, a surviving spouse has a right to elect against the Will of a predeceasing spouse. The elective share is one-third of the net estate. The  net estate consists of the net probate assets as well as testamentary substitutes. [EPTL § 4-1.1 provides that if the decedent dies intestate and is survived by a spouse and issue, the spouse takes $50,000 plus one-half of the residue; if there are no surviving issue, the spouse takes the entire estate.]

Testamentary substitutes include those assets over which the decedent may have parted with legal title prior to his death, but are brought back into the estate solely for purposes of calculating the surviving spouse’s right of election. Testamentary substitutes include (i) gifts causa mortis [gifts that become revocable…

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