In re the Estate of Schlosser

Nathan R. Sobel, S.

The law assistants in this and other courts as well as one of the parties question the directions given by me in a prior decision in the above estate dated March 9, 1973. Since the problem is a recurring one, it is worth discussion.

The problem is: How is the elective share of a surviving spouse computed when there are also nontestamentary benefits constituting testamentary substitutes benefiting the surviving spouse? (EPTL 5-1.1, subd. [b], par. [1].)

The directions are in the statute. The net testamentary estate is first determined. To that sum must be added the total of…