Curtesy in New York was abolished in 1930, along with its counterpart dower, and both were replaced with a gender-neutral set of protections under the Estates, Powers and Trusts Law.1New York State Senate. New York Real Property Law 189 – Estate of Curtesy Abolished The central modern right is the elective share, which guarantees a surviving spouse the greater of $50,000 or one-third of the deceased spouse’s net estate, regardless of what the will says.2New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse If you are researching curtesy because a spouse has died or you are planning an estate, the rules below are what actually apply.
What Curtesy Was and Why It Is Gone
At common law, curtesy gave a widower a life estate in all of his deceased wife’s real property, but only if the couple had produced a child born alive. Dower was the parallel right for widows, giving them a one-third life estate in their husband’s land.3New York State Senate. New York Real Property Law 190 – Dower Both rights were limited to real estate, tied to gender, and conditioned on circumstances that had little to do with how a modern marriage actually functions economically. New York swept them away and now relies on EPTL 5-1.1-A, which protects both spouses equally and reaches far more than just land.2New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse
The Elective Share
The elective share is the main thing a surviving spouse in New York needs to understand. When one spouse dies, the survivor can claim the greater of $50,000 or one-third of the net estate, no matter what the will provides.2New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse If the net estate is worth less than $50,000, the surviving spouse takes whatever is there. The net estate is calculated after debts, administration expenses, and reasonable funeral costs are subtracted; estate taxes are disregarded in that calculation.
The right exists to stop disinheritance. A spouse left $1 — or left nothing — can file a notice of election and claim the statutory share instead. To exercise the right, you must have been legally married to the decedent at the time of death. New York does not permit the creation of common-law marriages inside the state, though it recognizes one validly formed in a jurisdiction that allows it. An annulled, void, or divorced marriage leaves no surviving spouse to make a claim.4New York State Senate. New York Estates, Powers and Trusts Law 5-1.2 – Disqualification as Surviving Spouse
How Real Property Fits In
Since curtesy was about land, the real property question tends to be where searchers get stuck. The answer depends on how the property was titled. Real estate held solely in the deceased spouse’s name falls inside the estate and counts toward the elective share. Property held as joint tenants with rights of survivorship or as tenants by the entirety passes automatically to the surviving co-owner outside probate. Separate property owned before the marriage or received as a gift or inheritance generally sits outside the elective share unless it was retitled jointly or mixed so thoroughly with marital assets that it lost its separate character.
Reaching Beyond the Will
EPTL 5-1.1-A also pulls certain non-probate transfers back into the net estate so a spouse cannot be disinherited by lifetime maneuvering. These “testamentary substitutes” include gifts made within one year of death without full value received in return, property held in revocable trusts, payable-on-death accounts, joint accounts, and retirement benefits where someone other than the surviving spouse was named beneficiary. Irrevocable transfers made before the marriage generally do not count. The question courts focus on is whether the decedent kept control or benefit of the transferred property after the marriage.
When There Is No Will
If a spouse dies without a will, the intestacy statute controls. A surviving spouse with no children or other descendants from the decedent inherits the entire estate. If the decedent left descendants, the surviving spouse takes $50,000 plus half of what remains, and the descendants split the other half.5New York State Senate. New York Estates, Powers and Trusts Law 4-1.1 – Descent and Distribution of a Decedent’s Estate The intestate share and the elective share are separate rights; a surviving spouse unhappy with the will can elect against it and take the elective share, but cannot stack both.
Property the Spouse Keeps Automatically
On top of either share, a surviving spouse automatically keeps certain personal property, set aside before the estate is divided.6New York State Senate. New York Estates, Powers and Trusts Law 5-3.1 – Exemptions for Surviving Spouse and Children The categories are:
- Household furnishings, appliances, clothing, and jewelry up to $20,000 in aggregate value, excluding items used exclusively for business.
- Books, family photos, and media up to $2,500.
- Farm animals, machinery, and one tractor up to $20,000 in aggregate value.
- One motor vehicle up to $25,000. If the only vehicle is worth more, the spouse can take it by paying the estate the difference.
- Cash, bank accounts, and marketable securities up to $25,000, reduced by any excess value in the categories above.
If there is no surviving spouse, these items go to children under twenty-one.
When the Right Can Be Lost
Not every surviving spouse qualifies. EPTL 5-1.2 disqualifies a spouse where the marriage ended in a valid divorce, annulment, or dissolution before death; where the marriage was void from the start because of incest, bigamy, or a prohibited remarriage; where the spouse obtained a foreign divorce that New York does not recognize; where a final separation decree was rendered against the surviving spouse; where the surviving spouse abandoned the decedent voluntarily and without justification and the abandonment continued until death; or where the surviving spouse had the duty and means to support the decedent and refused to do so.4New York State Senate. New York Estates, Powers and Trusts Law 5-1.2 – Disqualification as Surviving Spouse A separation decree entered against the decedent, rather than against the survivor, does not disqualify. Simple living apart without a court judgment does not count as abandonment either; a court has to find the departure was unjustified.
The right can also be waived by prenuptial or postnuptial agreement. A valid waiver must be in writing, signed by the person giving up the right, and acknowledged or proved the same way a real property conveyance is recorded in New York.2New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse It can be unilateral, needs no consideration, and can be signed before or during the marriage. Courts will set aside a waiver obtained by fraud, coercion, or duress, and a lack of full financial disclosure is a common ground for challenge.
What Divorce Does
Divorce automatically revokes every revocable disposition the divorced person made in favor of the former spouse, including will bequests, beneficiary designations on life insurance and retirement accounts to the extent federal law allows, and revocable trust provisions. The former spouse is treated as having predeceased for purposes of every governing instrument.7New York State Senate. New York Estates, Powers and Trusts Law 5-1.4 – Revocation of Certain Provisions After Divorce or Annulment Divorce also severs any joint tenancy with right of survivorship, converting it to a tenancy in common so the property no longer passes automatically to the former spouse. Remarriage to the same person revives these provisions.
How and When to Claim the Elective Share
A surviving spouse who wants the elective share has to file a notice of election in the Surrogate’s Court of the county where the estate is being administered. The deadline is six months from the date letters testamentary or letters of administration are issued, and no later than two years after the date of death.2New York State Senate. New York Estates, Powers and Trusts Law 5-1.1-A – Right of Election by Surviving Spouse Written notice goes to the personal representative, and the original is filed with proof of service in the same court.
Missing the six-month window is not always fatal. The Surrogate’s Court can extend the deadline by up to six months on an application made before the original period expires. After a default, the court still has discretion to allow a late election as long as no decree settling the personal representative’s account has been entered and twelve months have not passed since letters were issued. The court can also, for good cause, go beyond the two-year outer limit, but that is a heavy lift. Anyone considering a notice of election, or who suspects a spouse’s estate was structured to minimize their share, should treat the deadlines as unforgiving and get legal advice early.