Detailed Answer
In New York, when someone dies without a valid will, their assets distribute under the Estates, Powers & Trusts Law (EPTL). The surviving spouse normally receives an intestate share—one half of the net estate if there are no descendants, or a share alongside children if there are. However, New York law lets the surviving spouse elect to take a life estate in the decedent’s principal residence instead of the standard intestate share.
Overview of Intestate Distribution
Under EPTL §4-1.1 and §4-1.4, if a decedent leaves no will, property passes to the spouse and then to descendants or other relatives. A surviving spouse is entitled to:
- One-half of the estate if there are no surviving descendants.
- A statutory share (usually one-third) if the decedent left children or descendants.
Electing a Life Estate Under EPTL §5-1.1-A
EPTL §5-1.1-A allows a surviving spouse to waive the intestate share and instead elect a life estate in the decedent’s principal residence, plus an undivided one-third interest in the decedent’s personal property (EPTL §5-1.1-A). Key points:
- The property must qualify as the decedent’s principal residence at the time of death.
- The life estate grants occupancy and use rights for the surviving spouse’s lifetime.
- Any surplus value beyond the elective share passes to other heirs under intestacy.
How to File Your Election
To make this election, you must file a written notice in the Surrogate’s Court where the estate is open. Follow these steps:
- Obtain or draft a notice of election referencing EPTL §5-1.1-A and SCPA §1402–§1404 (SCPA §1404).
- Serve the notice on the estate’s administrator or executor.
- Return a copy to the court within six months of letters granted to the estate’s administrator.
If you miss the six-month deadline, you may forfeit the right to elect and receive only the intestate share.
Comparing a Life Estate vs. Intestate Share
| Feature | Intestate Share | Life Estate Election |
|---|---|---|
| Ownership | Fee simple share in cash and real property | Life estate in principal residence; future interest to remaindermen |
| Use Rights | Full control and ability to sell | Occupancy only; cannot sell without consent of remainder beneficiaries |
| Value | Fixed share of estate value | Value depends on life expectancy and residence value |
Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a licensed attorney before taking action.
Helpful Hints
- Confirm the property’s designation as the decedent’s principal residence.
- Compare the projected value of a life estate vs. your intestate share.
- Mark calendar deadlines: you generally have six months from appointment of the estate administrator.
- Consult with a probate or estate attorney to review tax implications.
- Maintain clear records of filing and service of your election notice.