Resolving an Elective Share Dispute Through Mediation in New York

This FAQ-style guide explains practical steps heirs can take to resolve an elective share dispute through mediation under New York law. It assumes no prior legal knowledge and focuses on actions heirs can take right away. This is educational information only and not legal advice.

Detailed answer: How heirs can use mediation to resolve an elective share dispute

An “elective share” dispute typically arises when a surviving spouse elects to take a statutory share of the decedent’s estate rather than what the will gives them. Heirs (including beneficiaries named in the will and administrators) can often resolve these disputes faster and with less expense through mediation rather than litigating in Surrogate’s Court.

1. Understand the legal context

Before mediation, heirs should understand the legal framework that governs elective shares in New York. The elective share and related procedures are governed by the New York Estates, Powers & Trusts Law (EPTL). For general reference, see the EPTL on the New York Senate website: https://www.nysenate.gov/legislation/laws/EPT. For court resources about mediation and alternative dispute resolution, see the NY courts ADR pages: https://www.nycourts.gov/adr/ and information on Surrogate’s Courts: https://www.nycourts.gov/courts/surrogates/.

2. Act promptly and check procedural deadlines

Elective share and probate disputes can involve strict procedural rules and deadlines. Heirs should not delay gathering information or seeking counsel. Even if you intend to mediate, check whether any statutory deadlines or time limits apply to an election, challenge, or motion in Surrogate’s Court and protect rights accordingly.

3. Gather key documents and factual information

Mediation works best when parties come prepared. Heirs should collect:

• The decedent’s will(s) and codicils.
• Death certificate and any probate filings (petitions, letters testamentary/administration).
• Account statements and lists of assets potentially in the estate (real estate deeds, bank and investment accounts, retirement accounts, life insurance, business interests).
• Records of any inter vivos transfers or gifts by the decedent that may be relevant to calculating an elective share or augmented estate.
• Estate inventory and appraisals (obtain estimates if formal appraisals are not yet done).

4. Consult an attorney experienced in Surrogate’s Court and mediations

Even when intending to mediate, consult an attorney who understands New York elective share law and Surrogate’s Court practice. Counsel can:

• Explain how the elective share is calculated and which assets may be included in the augmented estate.
• Identify procedural deadlines and protect estate or beneficiary interests while mediation proceeds.
• Help prepare valuation evidence and a negotiation plan.

5. Propose mediation and choose the right mediator

Mediation can be voluntary or court-ordered. Steps include:

1. Make a formal proposal to the opposing party (the surviving spouse or their counsel) to mediate. Offer neutral mediators with experience in probate, trust, and estate disputes.
2. Agree on mediation terms: confidentiality, who will attend, document exchange deadlines, location or remote platform, costs, and mediator’s fee-splitting.
3. If a party refuses voluntary mediation, heirs can request the court to refer the matter to mediation if the local Surrogate’s Court rules or judge allows it.

6. Prepare a mediation brief and a realistic position

Provide the mediator and the other side with a concise mediation brief: factual background, legal positions, asset valuations, and a proposed settlement framework. Keep the brief focused and backed by documents. Include a prioritized list of what heirs are willing to accept (cash payment, reallocation of specific assets, release agreements, escrow arrangements).

7. Use valuation and neutral experts when needed

Many elective share disputes turn on asset valuation and whether certain transfers should be included in the augmented estate. Consider neutral appraisers, forensic accountants, or financial experts to provide credible valuations before or during mediation.

8. Negotiate settlement terms that address administration and future claims

A mediated settlement should cover:

• The specific amount or property to be transferred to satisfy the elective share.
• Timing and funding (immediate distribution, installment payments, or sale of assets).
• Mutual releases and waivers of future claims (carefully drafted and clear).
• Tax allocation and responsibility for fees and costs.
• What happens if assets change in value or if unanticipated assets are discovered.

9. Draft a written settlement agreement and, if necessary, seek court approval

After an agreement is reached, memorialize it in a written settlement (often called a stipulation of settlement or release). If the matter is already in Surrogate’s Court, the parties may present the stipulation to the court for entry or approval, as required by local practice. The court may incorporate the settlement into an order that resolves the pending elective claim.

10. Close the matter and preserve records

Once the settlement is implemented, complete the agreed transfers, file any necessary court papers, and keep signed releases and documentation. This reduces the risk of re-litigation.

When mediation is especially useful

Mediation is often preferable when parties want to:

• Control outcomes rather than leave decisions to a judge.
• Protect family relationships by avoiding adversarial court battles.
• Save time and litigation costs.
• Obtain flexible remedies (e.g., payment plans, specific asset transfers) not available through strict court orders.

When mediation may not be right

Mediation may not be effective if a party is unwilling to negotiate in good faith, if time-sensitive statutory deadlines force quick court action, or if the dispute requires preliminary legal rulings about entitlement that only a court can decide.

Helpful precautions

• Do not miss statutory deadlines while negotiating — preserve rights with timely filings or stipulations extending deadlines if appropriate.
• Insist on confidentiality clauses in mediation to keep sensitive financial details private.
• Make sure releases are broad enough to prevent later claims but narrowly tailored to reflect what was actually negotiated.
• If the estate is insolvent or taxes and creditors create complexity, make sure settlement terms address priority claims.

Helpful Hints

• Hire counsel early. Even if you want to mediate, an attorney can preserve rights and shape a realistic settlement strategy.
• Propose mediation in writing and identify 2–3 neutral mediators experienced in estate law to speed agreement on a mediator.
• Bring clear valuations to mediation — disputes often collapse when credible numbers are on the table.
• Consider phased settlements (partial payments or asset divisions now, remainder contingent on future events) when liquidity is a problem.
• Keep communications professional and documented to avoid misunderstandings that derail negotiation.
• If the case is in Surrogate’s Court, check local rules or the judge’s practice for how the court handles mediation referrals.

Where to get more information and help

Start with the New York EPTL statutes for elective share provisions: https://www.nysenate.gov/legislation/laws/EPT. For court-connected ADR resources and referrals to qualified mediators, see the New York Courts ADR site: https://www.nycourts.gov/adr/. For Surrogate’s Court procedures and local contacts, visit: https://www.nycourts.gov/courts/surrogates/.