Yes, the deadline for a New York surviving spouse to take an elective share can be extended.
When Does an Election To Take Elective Share Need To Be Made In New York?
An election to take elective share must be made by a New York surviving spouse within six months from the date of issuance of letters testamentary or of administration.
In no event can the election to take elective share be made later than two years after the date of decedent’s death, except as provided in EPTL 5-1.1-A(d)(2), set forth in full below.
When Can the Deadline To File To Take Elective Share Be Extended?
The deadline to file to take an elective share in New York can be extended for a period of not more than 6 months on any one application by an order of the surrogate’s court under several circumstances.
Application To Extend Made Before Expiration Of 6 Month Period after Issuance Of Letters
The deadline to file to take an elective share can be extended in New York if the application to extend the time to file is made before the expiration of the time to file for elective share, i.e., the application to extend is made in the six months after the issuance of letters testamentary or of administration.
Surrogate’s Court Can Extend Deadline Within 12 Month Period After Letters Under Certain Conditions
If the spouse does not file for elective share within the six month period after issuance of letters, the surrogate’s court can still authorize the filing of an election if:
- No decree settling the account of the personal representative has been made, and
- 12 months have not elapsed since the issuance of letters, and
- Two years have not elapsed since the decedent’s date of death, in the case of initial application.
Deadline Can Be Extended Beyond 2 Years For Good Cause Shown
Finally, the surrogate’s court may, for good cause shown, extend the time to make an election to take elective share beyond two years from the decedent’s death.
The New York surrogate’s court has a lot of discretion to extend the deadline to file to take an elective share by the surviving spouse. However, the deadlines and timelines in New York probate are not to be taken lightly. Filing to take an elective share or requesting an extension within the six months after letters are issued is the safest course of action, rather than letting the deadlines pass and hoping the surrogate’s court will extend the deadlines. A New York probate lawyer can make sure all of the key probate deadlines are met.
EPTL 5-1.1-A(d)(2)
The New York law regarding the extension of the deadline to file for an elective share can be found at EPTL 5-1.1-A(d)(2), which states:
(2) The time to make such election may be extended before expiration by an order of the surrogate’s court from which such letters issued for a further period not exceeding six months upon any one application. If the spouse defaults in filing such election within the time provided in subparagraph (1) of this paragraph, the surrogate’s court may relieve the spouse from such default and authorize the making of an election within the period fixed by the order, 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, and two years have not elapsed since the decedent’s date of death, in the case of initial application; except that the court may, in its discretion for good cause shown, extend the time to make such election beyond such period of two years. 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. A certified copy of such order shall be indexed and recorded in the same manner as a notice of pendency of an action in the office of the clerk of each county in which real property of the decedent is situated.
