STATE OF NEW YORK
________________________________________________________________________
11255
IN ASSEMBLY
May 25, 2010
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Introduced by M. of A. O'DONNELL, WEINSTEIN -- read once and referred to
the Committee on Judiciary
AN ACT to amend the estates, powers and trusts law, in relation to the
right of election by surviving spouse
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subparagraphs 1 and 2 of paragraph (d) of section 5-1.1-a
2 of the estates, powers and trusts law, as amended by chapter 515 of the
3 laws of 1993, are amended to read as follows:
4 (1) An election under this section must be made within six months from
5 the date of issuance of letters testamentary or of administration, as
6 the case may be, but in no event later than two years after the date of
7 decedent's death, except as otherwise provided in subparagraph 2 of this
8 paragraph. Written notice of such election shall be served upon any
9 personal representative in the manner herein provided, or upon a person
10 named as executor in a will on file in the surrogate's court in a case
11 where such will has not yet been admitted to probate, and the original
12 thereof shall be filed and recorded, with proof of service, in the
13 surrogate's court in which such letters were issued within six months
14 from the date of the issuance of letters but in no event later than two
15 years from the date of decedent's death, except as otherwise provided in
16 subparagraph 2 of this paragraph. Such notice may be served by mailing
17 a copy thereof, addressed to any personal representative, or to the
18 nominated executor, as the case may be, at the place of residence stated
19 in the designation required by [SCPA] section 708 of the surrogate's
20 court procedure act or in such other manner as the surrogate may direct.
21 (2) The time to make such election may be extended before expiration
22 by an order of the surrogate's court from which such letters issued for
23 a further period not exceeding six months upon any one application. If
24 the spouse defaults in filing such election within the time provided in
25 subparagraph [(d)] (1) of this paragraph, the surrogate's court may
26 relieve the spouse from such default and authorize the making of an
27 election within the period fixed by the order, provided that no decree
28 settling the account of the personal representative has been made and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD17513-01-0
A. 11255 2
1 that twelve months have not elapsed since the issuance of the letters,
2 and two years have not elapsed since the decedent's date of death, in
3 the case of initial application; except that the court may, in its
4 discretion for good cause shown, extend the time to make such election
5 beyond such period of two years. An application for relief from the
6 default and for an extension of time to elect shall be made upon a peti-
7 tion showing reasonable cause and on notice to such persons and in such
8 manner as the surrogate may direct. A certified copy of such order shall
9 be indexed and recorded in the same manner as a notice of pendency of an
10 action in the office of the clerk of each county in which real property
11 of the decedent is situated.
12 § 2. This act shall take effect on the first of January next succeed-
13 ing the date on which it shall have become a law.
