Reckoning With New York's Marital Right of Election

Throughout history, many cultures have imposed restrictions on the right of an individual to freely bequeath assets. The concept of “forced heirship” has been entrenched in the laws of many jurisdictions for centuries. The historical basis of forced heirship was to require land to pass down to one’s issue—frequently giving priority in distributions to the eldest son. Today, most U.S. jurisdictions permit one to freely disinherit their descendents.¹

Forced heirship laws did not always provide protection for a surviving spouse against disinheritance. Modern society, at least in the United States, has taken a decidedly different tack. While children generally may be freely disinherited, a surviving spouse is generally afforded considerable protection under statutory law. New York’s EPTL §5-1.1-A “right of election by surviving spouse” is one of the more robust elective share statutes in the United States. When you combine these rights under state law with the federal estate tax, which currently allows an unlimited marital deduction, there tends to be an overwhelming bias in the law in favor of spousal inheritance.