A New York appellate court allows a surviving spouse to withdraw her election of a statutory spousal share of her deceased husband's estate, even though the other beneficiaries will now receive less of an inheritance. In the Matter of the Estate of Oestrich (N.Y. App. Div., No. 505564, April 30, 2009).
William Oestrich died in 2006, leaving his estate equally to 13 beneficiaries. When Mr. Oestrich's will was admitted to probate, his wife filed notice of her election of a spousal share. Almost two years later, the attorney serving as the executrix of the estate convinced Mrs. Oestrich to change her election because several testamentary substitutes she was entitled to exceeded the value of her spousal share.
Mrs. Oestrich petitioned the Surrogate's Court to cancel her prior election, and while the petition was pending, the executrix distributed shares to the 13 beneficiaries, including Mrs. Oestrich. Unfortunately, the Surrogate's Court denied Mrs. Oestrich's petition and ordered her to return her share of the estate after finding that the 12 other beneficiaries would each lose approximately $2,000 if Mrs. Oestrich were allowed to withdraw her election. Mrs. Oestrich appealed.
The Appellate Division of the Supreme Court of New York, Third Department, reverses and allows Mrs. Oestrich to withdraw her election. The court points out that "the net effect of such withdrawal is to put the beneficiaries in exactly the same position they were in under the terms of the will as intended by decedent. Significantly, there is no showing that any of the other 12 beneficiaries changed their position in any fashion in reliance upon the result of the election."
For the full text of this decision, go to: https://decisions.courts.state.ny.us/ad3/Decisions/2009/505564.pdf
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