Elective Share Statute

Question 1

What is the purpose of the elective share statute?

Answer 1

To protect the surviving spouse against disinheritance by giving him or her a minimum share of the testator’s probate estate.

Question 2

What is the elective share?

Answer 2

Greater of $50k or 1/3 of an estate.

Question 3

What it the elective share paid after?

Answer 3

Value of estate after debts paid for but before payment of estate taxes.

Question 4

What if elective share amount is not satisfied?

Answer 4

They beneficiaries under the will have to contribute pro-rata.

Question 5

What is the story under intestacy?

Answer 5

Surviving spouse takes all OR $50k plus half of balance of estate (where there is an issue floating about)

Question 6

What is the situation around testamentary substitutes?

Answer 6

Because elective share theoretically applies only to a testator’s probate estate, a testator intent on disinheriting his or her spouse could defeat the protection of the elective share statute by transferring non-probate assets to other persons.

Question 7

How does the law prevent a testator from defeating the elective share statute?

Answer 7

States that the elective share includes probate estate and testamentary substitutes.

Question 8

What is the testamentary substitutes acronym?

Answer 8

T S LEG UP

Question 9

What does the T in TS LEG UP stand for?

Answer 9

Totten Trust, including bank accounts in testator’s name in trust for another.

Question 10

What does the S in TS LEG UP stand for?

Answer 10

Survivorship estates, including joint tenancies, tenancies by entirety, joint bank accounts and survivor bank accounts

Question 11

What does the L in TS LEG UP stand for?

Answer 11

LIfetime transfers with strings attached. Transfers where the power to revoke, invade, consume or dissolve of principal or name new beneficiaries and transfers made during marriage, or where testator retained a life estate.

Question 12

What does the E in TS LEG UP stand for?

Answer 12

Employee pension, profit sharing and deferred compensation plans. If plan is only qualified plan only 1/2 is a testamentary substitute regardless of beneficiary.

Question 13

What does the G in TS LEG UP stand for?

Answer 13

Gifts within one year of death. Gifts in excess of $14k and gifts cause mortis (in fear of impending death regardless of amount)

Question 14

What does the U in TS LEG UP stand for?

Answer 14

US Government bonds and other pay on death arrangements.

Question 15

What does the P in TS LEG UP stand for?

Answer 15

Powers of appointment - property over which the testator held presently exercisable general power of appointment.

Question 16

That is the non-testamentary substitutes acronym?

Answer 16

LOGPIT

Question 17

What does the L in LOGPIT stand for?

Answer 17

Life insurance (whether payable to spouse or third party)

Question 18

What does the O in LOGPIT stand for?

Answer 18

One half of a qualified pension and profit sharing benefits.

Question 19

What does the G in LOGPIT stand for?

Answer 19

Gifts of less than $14k made within one year of death.

Question 20

What does the P in LOGPIT stand for?

Answer 20

Pre-marriage irrevocable transfers. A gift to friend prior to marriage.

Question 21

What does the I in LOGPIT stand for?

Answer 21

Irrevocable transfers made more than one year before death.

Question 22

What does the T in LOGPIT stand for?

Answer 22

Transfers (irrevocable) made during marriage where testator retains a life estate.

Question 23

So how do I calculate elective share estate including testamentary?

Answer 23

Take full value of testamentary substitute included

Question 24

What is the exception to calculating elective share estate?

Answer 24

1) Survivorship estates involving testator and third party. Consideration furnished test will apply which means surviving spouse has burden of proving decedent spouses consideration to assent.
2) Survivorship estates involving testator and surviving spouse. Surviving spouse has 1/2 T-Sub.
3) Survivorship estates created before marriage involving testator and third party. Consideration furnished test applies to half of the property .

Question 25

What about elective share and intestacy?

Answer 25

No there is nothing, not assets other than bank.

Question 26

Do elective share trusts satisfy the surviving spouse’s right of election?

Answer 26

No. Trust read as though surviving spouse pre-deceased testator.

Question 27

Can the right of election be waived?

Answer 27

Yes, with or without consideration in a writing signed and acknowledged before a notary public.

Question 28

Do I have a right of election if my dead spouse was not domiciled in NY at time of death?

Answer 28

No.

Question 29

What if a non NY domicile testator states in their will that disposition of NY property is to be governed by NY law?

Answer 29

The surviving spouse can claim elective share.

Question 30

What if non NY domicile testator does not state NY Property to be governed by NY law?

Answer 30

The will is admitted to probate and entire estate administered in state of domicile. Ancillary proceeding require in NY to clear title of NY property.

Question 31

What property is entirely exempt from this whole process?

Answer 31

1) Car up to 25k
2) Furniture, appliances, electronics up to $20k
3) Cash allowances up to $25k. These are not subject to creditor’s claims other than claims for funeral expenses.
4) Animals, farm machinery, tractors etc up to $20k.
5) Books, dvds, cds, software etc up to $2.5k.

Question 32

What disqualifies a spouse from taking elective share?

Answer 32

The DISMAL tests, divorce, invalid divorce, separation, marriage void, abandonment/lack of support.