What elements comprise the net estate for calculating a surviving spouse's elective share in New York law?

• A. Property in decedent's name that could pass under a will only
• B. Property that passes in intestacy only
• C. Net probate assets, property passing in intestacy, testamentary substitutes, and debts owed to decedent
• D. Debts owed to decedent only

Answer: (C)

In New York, the surviving spouse’s elective share is calculated on the decedent’s net estate, not just what passes under the will. The net estate includes all assets that the decedent could have contributed to the surviving spouse, whether or not they pass through the probate process. That means:

• Net probate assets (the property that would pass under the will),

• Property that passes by intestacy (what would pass if there were no will),

• Testamentary substitutes (assets that bypass the will but are intended to benefit the spouse, such as certain life insurance, retirement benefits, or other arrangements that transfer outside probate),

• Debts owed to the decedent (receivables that augment the estate’s value at death).

Including these components ensures the elective share reflects the total wealth the decedent could have allocated to the spouse, not just the portion that actually goes through probate.