The Second Department of the Appellate Division has reversed the Brooklyn Surrogate in the Matter of Sylvester(2013 Slip Op 04613) , granting a widow the right to file a late notice of election against her husband’s estate. A surviving spouse must give notice of her intent to exercise his or her statutory right of election against the estate of a deceased spouse within six months of the issuance of letters testamentary to an executor of the estate. In New York, the Estates, Powers and Trusts Law (EPTL) provides that if a surviving spouse is dissatisfied with the legacy left by his or her spouse’s will, it is possible to elect to receive an "elective share" of the estate amounting to the first $50,000 of the estate plus the next third rather than accept a presumably lesser legacy, thereby thwarting a testamentary scheme aimed at cutting one’s wife (or husband) out of a will.
After retaining new counsel, it was discovered that the Notice of Election had been drawn and executed but had never been filed as a result of errors committed by the prior attorney. The court noted that " EPTL 5-1.1-A(d)(1) sets forth the specific procedures to be followed in exercising a right of election. "If the spouse defaults in filing such election within the time provided in subparagraph (d)(1) of this paragraph, the surrogate’s court may relieve the spouse from such default and authorize the making of an election . . . provided that no decree settling the account of the personal representative has been made and that twelve months have not elapsed since the issuance of the letters" (EPTL 5-1.1-A[d]). "An application for relief from the default and for an extension of time to elect shall be made upon a petition showing reasonable cause and on notice to such persons and in such manner as the surrogate may direct" (id.). ‘
In this matter, the court found that the surviving spouse demonstrated that she had a reasonable excuse for her notice going unfiled (law office failure not of her doing) and the undue delay had not prejudiced any party. The determination of the Surrogate’s Court to deny the widow the right to file a late notice of her right of election was reversed and the notice was allowed.