New York: Revocable Trusts are Subject to a Surviving Spouse's Right of Election

In New York, assets that are transferred to a revocable trust are subject to the right of election by the surviving spouse under EPTL 5-1.1-A.

New York law provides for a right of election by the surviving spouse, which entitles the spouse to claim a share of the decedent’s estate regardless of the provisions of the will or any other testamentary substitute, such as a revocable trust.

The amount of the spouse’s elective share is "equal to the greater of (i) fifty thousand dollars or, if the capital value of the net estate is less than fifty thousand dollars, such capital value, or (ii) one third of the net estate." EPTL 5-1.1-A(2).

A revocable trust is considered a testamentary substitute and will be included in the asset base for calculating the elective share. EPTL 5-1.1-A(b)(1)(F).