Assembly Bill A11255

                            
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  11255

                          I N  A S S E M B L Y

                              May 25, 2010
                               ___________

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:

  Section  1.  Subparagraphs 1 and 2 of paragraph (d) of section 5-1.1-a
of the estates, powers and trusts law, as amended by chapter 515 of  the
laws of 1993, are amended to read as follows:
  (1) An election under this section must be made within six months from
the  date  of  issuance of letters testamentary or of administration, as
the case may be, but in no event later than two years after the date  of
decedent's death, EXCEPT AS OTHERWISE PROVIDED IN SUBPARAGRAPH 2 OF THIS
PARAGRAPH.  Written  notice  of  such  election shall be served upon any
personal representative in the manner herein provided, or upon a  person
named  as  executor in a will on file in the surrogate's court in a case
where such will has not yet been admitted to probate, and  the  original
thereof  shall  be  filed  and  recorded,  with proof of service, in the
surrogate's court in which such letters were issued  within  six  months
from  the date of the issuance of letters but in no event later than two
years from the date of decedent's death, EXCEPT AS OTHERWISE PROVIDED IN
SUBPARAGRAPH 2 OF THIS PARAGRAPH.  Such notice may be served by  mailing
a  copy  thereof,  addressed  to  any personal representative, or to the
nominated executor, as the case may be, at the place of residence stated
in the designation required by [SCPA] SECTION  708  OF  THE  SURROGATE'S
COURT PROCEDURE ACT or in such other manner as the surrogate may direct.
  (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  [(d)]  (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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
              

                                                           LBD17513-01-0

A. 11255                            2

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 peti-
tion  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.
  S  2. This act shall take effect on the first of January next succeed-
ing the date on which it shall have become a law.