If an IRA is left entirely to a surviving spouse, is that considered in determining entitlement to an elective share?

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If an IRA is left entirely to a surviving spouse, is that considered in determining entitlement to an elective share?

Asked on January 29, 2011 under Estate Planning, New York

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

I am sorry for your loss and the troubles that have ensued.  It is my understanding that under New York State law, a surviving spouse has a right to ignore the will and instead elect to take a straight one-third of the estate based upon what is known as the augmented estate of the decedent.  The augmented estate includes everything in the will, plus everything that transfers through non-probate means (trusts, insurance, 401k, etc.).  Here the IRA would be considered part of the augmented estate and calculated in to the assets for the purpose of computing the elective share.  So then the answer to your question is undoubtedly a "yes," you would calculate the IRA in to the share.  Double check this with your estate attorney as well. Good luck.


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