When a spouse exercises his or her right to elect against a decedent’s will pursuant to EPTL 5-1.1-A, there is, in effect, an alteration to the decedent’s testamentary intent as expressed in that will. The statute is designed to deal with that alteration while keeping as much of the decedent’s original intent intact as possible. This is true with respect to the payment of estate taxes as well as the proportions in which a decedent’s named beneficiaries share in the estate.
The general rule in New York regarding the payment of estate taxes is that they are equitably apportioned among the recipients of assets included in the taxable estate unless otherwise provided in a will or non-testamentary instrument. EPTL 2-1.8(c). Thus, the general rule is a default provision, which can be, and is routinely, circumvented by a testator in a tax apportionment clause in her will. For example, testators often provide that all estate taxes be paid from the testamentary residuary estate without apportionment. But what effect do such clauses have when a spouse elects against the will?1 Does the spouse’s election result in a forfeiture in any benefit that a tax apportionment clause might provide to the spouse?
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