Elective share assets include net probate estate plus testamentary substitutes.

• A. True
• B. False
• C. Only net probate assets
• D. Only testamentary substitutes

Answer: (A)

In New York, the elective share is calculated from the decedent’s net estate, and that net estate includes not only probate assets but also certain assets that pass outside the will—the testamentary substitutes. This matters because a surviving spouse can claim a share even if the will disinherited them or limited their bequest, by reaching into both what was in the probate estate and these nonprobate transfers.

Testamentary substitutes are assets that do not go through the probate process but are treated as part of the estate for the purposes of the elective share. Examples include property held in joint tenancy with right of survivorship, life insurance proceeds or retirement benefits designated to a spouse, and certain trust arrangements or other beneficiary-designated or survivorship assets that would have otherwise bypassed the will. By including these substitutes, the elective share ensures the spouse’s claim is based on a broader pool of assets than just the probate estate, aligning with the goal of preventing disinheritance.

So the statement is correct: elective share assets include the net probate estate plus testamentary substitutes.