NY Will Contests & Spousal Right of Election

A will can be challenged, and a surviving spouse cannot be cut out of a New York estate. Both situations change who ultimately receives the estate, but neither erases the decedent’s debts. In creditor-heavy estates, will contests and spousal claims are fought over what remains after creditors are paid, which makes the size of the estate’s liabilities central to the dispute. We represent objectants, proponents, and surviving spouses.

Grounds to Contest a Will

An interested party can object to admitting a will to probate in Surrogate’s Court on several grounds, including improper execution, lack of testamentary capacity, undue influence, fraud, or that the document was revoked. The objectant must generally have standing, meaning they would inherit more if the will were denied probate. We evaluate whether the facts support an objection and whether the potential recovery justifies the fight, especially when creditors may consume much of the estate regardless.

How a Contest Proceeds

Before formal objections, parties often conduct discovery under SCPA 1404 to examine the will’s witnesses and the attorney who drafted it. If objections are filed, the case proceeds toward settlement or trial. Throughout, the executor still must preserve assets and address creditor claims, because the estate’s debts are paid regardless of who eventually inherits. A drawn-out contest can itself increase administration expenses that reduce the estate.

The Spousal Right of Election

New York protects surviving spouses from disinheritance through the right of election under EPTL 5-1.1-A. A surviving spouse may elect to take an elective share, generally the greater of a set dollar amount or one-third of the net estate, even if the will leaves them less. The election must be made within the statutory time period, and strict deadlines apply. We help spouses assert the election and help estates respond to it.

Creditors and the Elective Share

The elective share is calculated against the net estate, which means valid debts and expenses reduce the base before the one-third is figured. In a heavily indebted estate, a spouse’s elective share can be far smaller than expected once creditors are satisfied. We model these numbers early so a surviving spouse understands what the election is actually worth after the estate’s liabilities are accounted for.

Exempt Property for the Spouse

Beyond the elective share, EPTL 5-3.1 sets aside certain exempt property, such as specified household items and a limited cash allowance, for a surviving spouse or minor children. This property is generally protected ahead of most creditors, making it one of the few assets a spouse can count on even when an estate is insolvent. We make sure these protections are claimed.

Consult a New York Attorney

Will contests and the right of election involve hard deadlines and fact-specific calculations, particularly when creditors are involved. This page is general information and not legal advice. Before filing objections or electing against a will, consult a licensed New York attorney to assess your standing, your deadlines, and the estate’s true net value. Contact our firm to discuss your matter.