Unless the will whenever executed provides otherwise:

(1) Unlessment will executedeptember first, nineteen hundred

ninety-two. Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, per stirpes.

(2) Instruments executed on or after September first, nineteen hundred ninety-two. Whenever a testamentary disposition is made to the issue or to a brother or sister of the testator, and such beneficiary dies during the lifetime of the testator leaving issue surviving such testator, such disposition does not lapse but vests in such surviving issue, by representation. provisions of [subparagraph] subparagraphs (1) and (2) apply to a disposition made to issue, brothers or sisters as a class as if the disposition were made to the beneficiaries by their individual names, except that no benefit shall be conferred hereunder upon the surviving issue of an ancestor who died before the execution of the will in which the disposition to the class was made.

(b) As used in this section, the terms "issue", "surviving issue" and "issue surviving" include adopted children and their issue to the extent they would be included in a disposition to "issue" under 2-1. 3 and subdivision two of section one hundred seventeen of the domestic relations law, and nonmarital children; for this purpose, a nonmarital child is the child of his mother and is the child of his father if he is entitled to inherit from his father under 4-1. 2.

§ 7. Section 3-3.9 of the estates, powers and trusts law, as renumbered by chapter 472 of the laws of 1967, is amended to read as follows: § 3-3.9 Testamentary direction to purchase annuities

If a testator directs in his will the purchase of an annuity, the beneficiaries to whom the income thereof is to be paid may not elect to take the capital sum directed to be used for the purchase of such annuity in lieu thereof, unless the will expressly confers such right or except as the will expressly provides for the purchase of an assignable annuity. But nothing contained herein shall impair the right of election by a surviving spouse under 5-1.1 or 5-1.1-A.

§ 8. Section 4-1. 1 of the estates, powers and trusts law, subparagraphs 1 and 2 of paragraph (a) as amended by chapter 423 of the laws of 1978 and subparagraph 9 of paragraph (a) as amended by chapter 903 of the laws of 1974, is amended to read as follows:

§ 4-1.1 Descent and distribution of a decedent's estate

be

The property of a decedent not disposed of by will[, after payment of administration and funeral expenses, debts and taxes, shall be distributed as provided in this section. In computing Said distribution, debts, administration expenses and reasonable funeral expenses shall deducted but all estate taxes shall be disregarded, except that nothing contained herein relieves a distributee from contributing to all such taxes the amounts apportioned against him or her under 2-1.8. Distribution shall then be as follows:

(a) If a decedent is survived by:

(1) A spouse and [children or their] issue, [money or personal property not exceeding in value four] fifty thousand dollars and and [onethird] one-half of the residue to the spouse, and the balance thereof to the [children or to their] issue [per stirpes] by representation.

(2) [A spouse and only one child, or a spouse and only the issue of one deceased child, money or personal property not exceeding in value four thousand dollars and one-half of the residue to the spouse, and the balance thereof to the child or to his issue per stirpes.

(3) A spouse and both parents, and no issue, twenty-five thousand dollars and one-half of the residue to the spouse, and the balance thereof to the parents. If there is no surviving spouse, the whole to the parents.

(4) A spouse and one parent, and no issue, twenty-five thousand dollars and one-half of the residue to the spouse, and the balance thereof to the parent. If there is no surviving spouse, the whole to the parent. (5)] A spouse[] and no issue [or parent], the whole to the spouse. (6)] (3) Issue[,] and no spouse, the whole to the issue [per stirpes. EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

(7) Brothers or sisters or their issue, and no spouse, issue or parent, the whole to the brothers or sisters or to their issue per stirpes.

(8) Grandparents only, the whole to the grandparents. If there are no grandparents, the whole to the issue of the grandparents in the nearest degree of kinship to the decedent per capita.

(9) Great-grandparents only, the whole to the great-grandparents. If there are no great-grandparents, the whole to the issue of greatgrandparents in the nearest degree of kinship to the decedent per capita. Provided that in the case of a decedent who is survived by great-grandparents only, or the issue of great-grandparents only, such great-grandparents or the issue of such great-grandparents shall not be entitled to inherit from the decedent unless the decedent was at the time of his death an infant or an adjudged incompetent. Provided, further, that this subparagraph nine shall be applicable only to the estates of persons dying on or after its effective date.

(b) If the distributees of the decedent are in equal degree of kinship to him, their shares are equal.

(c) There is no distribution per stirpes except in the case of the decedent's issue, brothers or sisters and the issue of brothers or

sisters.

(d)], by representation.

(4) One or both parents, and no spouse and no issue, the whole to the surviving parent or parents.

(5) Issue of parents, and no spouse, issue or parent, the whole to the issue of the parents, by representation.

(6) One or more grandparents or the issue of grandparents (as hereinafter defined), and no spouse, issue, parent or issue of parents, one-half to the surviving paternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation, and the other one-half to the surviving maternal grandparent or grandparents, or if neither of them survives the decedent, to their issue, by representation; provided that if the decedent was not survived by a grandparent or grandparents on one side or by the issue of such grandparents, the whole to the surviving grandparent or grandparents on the other side, or if neither of them survives the decedent, to their issue, by representation, in the same manner as the one-half. For the purposes of this subparagraph, issue of grandparents shall not include issue more remote than grandchildren of such grandparents.

dren

(7) Great-grandchildren of grandparents, and no spouse, issue, parent, issue of parents, grandparent, children of grandparents or grandchilof grandparents, one-half to the great-grandchildren of the paternal grandparents, per capita, and the other one-half to the greatgrandchildren of the maternal grandparents, per capita; provided that if the decedent was not survived by great-grandchildren of grandparents one side, the whole to the great-grandchildren of grandparents on the other side, in the same manner as the one-half.

on

(b) For all purposes of this section, decedent's relatives of the half blood shall be treated as if they were relatives of the whole blood. [(e)] (c) Distributees of the decedent, conceived before his or her death but born alive thereafter, take as if they were born in his or her lifetime.

[(f)] (d) The right of an adopted child to take a distributive share and the right of succession to the estate of an adopted child continue as provided in the domestic relations law.

[(g)] (e) A distributive share passing to a surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.

§

$ 9. The section heading, the opening paragraph of subparagraphs 1, 2 and 3 of paragraph (a) and paragraph (b) of section 4-1.2 of the estates, powers and trust law, the section heading, subparagraphs 1 and 3 of paragraph (a) as amended by chapter 67 of the laws of 1981, subparagraph 2 2 of paragraph (a) as amended by chapter 434 of the laws of 1987 and paragraph (b) as separately amended by chapters 67 and 75 of the laws of 1981, are amended to read as follows:

Inheritance by [or from born out of wedlock persons] non-marital children

A [child born out of wedlock] non-marital child is the legitimate child of his mother so that he and his issue inherit from his mother and from his maternal kindred.

A [child born out of wedlock] non-marital child is the legitimate child of his father so that he and his issue inherit from his father and his paternal kindred if:

The existence of an agreement obligating the father to support the [child born out of wedlock] non-marital child does not qualify such child or his issue to inherit from the father in the absence of an order of filiation made or acknowledgement of paternity as prescribed by subparagraph (2).

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(b) If a child born out of wedlock] non-marital child dies, his surviving spouse, issue, mother, maternal kindred, father and paternal kindred inherit and are entitled to letters of administration as if the decedent were legitimate, provided that the father and paternal kindred may inherit or obtain such letters only if the paternity of the [child born out of wedlock] non-marital child has been established pursuant provisions of [subparagraph] clause (A) of [paragraph] subparagraph (2) of [subdivision] paragraph (a) or the father has signed an instrument acknowledging paternity and filed the same in accordance with the provisions of [subparagraph] clause (B) of [paragraph] subparagraph (2) of [subdivision] paragraph (a) or paternity has been established by clear and convincing evidence and the father of the child has openly and notoriously acknowledged the child as his own.

§ 10. The estates, powers and trusts law is amended by adding a new section 5-1. 1-A to read as follows:

§ 5-1.1-A Right of election by surviving spouse

(a) Where a decedent dies on or after September first, nineteen hundred ninety-two and is survived by a spouse, a personal right of election is given to the surviving spouse to take a share of the decedent's estate, subject to the following:

(1) For the purpose of this section, the decedent's estate includes the capital value, as of the decedent's death, of any property described in subparagraph (b) (1).

(2) The elective share, as used in this paragraph, is the pecuniary amount equal to the greater of (i) fifty thousand dollars or (ii) one third of the net estate. In computing the net estate, debts, administration expenses and reasonable funeral expenses shall be deducted, but all estate taxes shall be disregarded, except that nothing contained herein relieves the surviving spouse from contributing to all such taxes the amounts apportioned against him or her under 2-1.8.

(3) The term "testamentary provision", as used in this paragraph, includes, in addition to dispositions made by the decedent's will, distributions of property pursuant to 4-1.1 and any transaction described as a testamentary substitute in subparagraph (b) (1).

(4) The share of the testamentary provisions to which the surviving spouse is entitled hereunder is his or her elective share, as defined in subparagraphs (1) and (2), reduced by the capital value of any interest, other than a terminable interest, which passes from the decedent to such spouse, or which would have passed from the decedent to such spouse but was renounced by the spouse, (i) by intestacy under 4-1.1, (ii) by testamentary substitute as described in subparagraph (b) (1), and (iii) by disposition under the decedent's last will.

(A) Unless the decedent has provided otherwise, if a spouse elects under this section, such election shall have the same effect with respect to any terminable interest which passed or would have passed to the spouse as though the spouse died on the same date but immediately before the death of the decedent.

(B) For the purposes of this subparagraph (4), a "terminable interest" which passed or would have passed to the surviving spouse is any such interest in property which will fail on the lapse of time or on the occurrence, or failure to occur, of a contingency, where as a result of such failure, an interest in such property passes or has passed from the decedent to a person other than the surviving spouse or his or her estate, provided, however, that such term shall not include an interest which will fail only if the surviving spouse dies within six months of the death of the decedent.

(5) Where a decedent dies before September first, nineteen hundred ninety-four, paragraphs (c)(1)(D) through (c)(1)(R) of section 5-1.1 shall apply except that the words "fifty thousand dollars" shall be substituted for the words "ten thousand dollars" wherever they appear in such paragraphs.

EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

(b) Inter vivos dispositions treated as testamentary substitutes for the purpose of election by surviving spouse.

(1) Where a person dies after August thirty-first, nineteen hundred ninety-two and is survived by a spouse who exercises a right of election under paragraph (a), the transactions and property interests described in clauses (A) through (H), whether benefiting the surviving spouse or any other person, shall be treated as testamentary substitutes and the capital value thereof shall be included in the net estate subject to the surviving spouse's elective right. Notwithstanding the foregoing, a transaction that is irrevocable (other than any such transaction described in clause (G)), will constitute a testamentary substitute only if it is effected after the date of the marriage.

(A) Gifts causa mortis.

to

(B) The aggregate transfers of property (other than gifts causa mortis and transfers coming within the scope of clauses (G) and (H)), to or for the benefit of any person, made after August thirty-first, nineteen hundred ninety-two, and within one year of the death of the decedent, the extent that the decedent did not receive adequate and full consideration in money or money's worth for such transfers; provided, however, that any portion of any such transfer that was excludible from taxable gifts pursuant to subsections (b) and (e) of section two thousand five hundred three of the United States Internal Revenue Code, including any amounts excluded as a result of the election by the surviving spouse to treat any such transfer as having been made one half by him or her, shall not be treated as a testamentary substitute.

(C) Money deposited, together with all dividends or interest credited thereon, in a savings account in the name of the decedent in trust for another person, with a banking organization, savings and loan association, foreign banking corporation or organization or bank or savings and loan association organized under the laws of the United States, and remaining on deposit at the date of the decedent's death.

(D) Money deposited, together with all dividends or interest credited thereon, in the name of the decedent and another person and payable on death, pursuant to the terms of the deposit or by operation of law, to the survivor, with a banking organization, savings and loan association, foreign banking corporation or organization or bank or savings and loan association organized under the laws of the United States, and remaining on deposit at the date of the decedent's death.

(E) Any disposition of property made by the decedent whereby property, at the date of his or her death, is held (i) by the decedent and another person as joint tenants with a right of survivorship or as tenants by the entirety where the disposition was made after August thirty-first, nineteen hundred sixty-six, or (ii) by the decedent and is payable on his or her death to a person other than the decedent or his or her

estate.

or

(F) Any disposition of property or contractual arrangement made by the decedent, in trust or otherwise, to the extent that the decedent (i) after August thirty-first, nineteen hundred ninety-two, retained for his or her life or for any period not ascertainable without reference to his her death or for any period which does not in fact end before his or her death the possession or enjoyment of or the right to income from, the property; or (ii) at the date of his or her death retained either alone or in conjunction with any other person who does not have an adverse interest, by the express provisions of the disposing instrument, a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof. The provisions of this subparagraph shall not affect the right of any income beneficiary to the income undistributed or accrued at the date of death nor shall they impair or defeat any right which has vested on or before August thirty-first, nineteen hundred ninety-two.

(G) Any money, securities or other property payable under a thrift, savings, retirement, pension, deferred compensation, death benefit, stock bonus or profit-sharing plan, account, arrangement, system or trust, except that with respect to a plan to which subsection (a) (11) of section four hundred one of the United States Internal Revenue Code applies or a defined contribution plan to which such subsection does not apply pursuant to paragraph (B) (iii) thereof, only to the extent of fifty percent of the capital value thereof. Notwithstanding the foregoing, a transaction described herein shall not constitute a testamentary substitute if the transaction was effected on or before September first, nineteen hundred ninety-two.

(H) Any interest in property to the extent the passing of the principal thereof to or for the benefit of any person was subject to a presently exercisable general power of appointment, as defined in section two thousand forty-one of the United States Internal Revenue Code, held by the decedent immediately before his or her death or which the decedent, within one year of his or her death, released (except to the extent such release results from a lapse of the power which is not treated as a release pursuant to section two thousand forty-one of the United States Internal Revenue Code) or exercised in favor of any person other than himself or herself or his or her estate.

(2) Transactions described in clause (D) or (E) shall be treated as testamentary substitutes in the proportion that the funds on deposit were the property of the decedent immediately before the deposit or the consideration for the property described in clause (E) was furnished by the decedent. The surviving spouse shall have the burden of establishing the proportion of the decedent's contribution; provided, however, that where the surviving spouse is the other party to the transaction, it will be conclusively presumed that the proportion of the decedent's contribution is one-half. For the purpose of this subparagraph, the court may accept such evidence as is relevant and competent, whether or the person offering such evidence would otherwise be competent to

testify.

not

(3) The property referred to in clause (E) shall include United States savings_bonds and other United States obligations.

a

one

(4) The provisions of this paragraph shall not prevent a corporation or other person from paying or transferring any funds or property to person otherwise entitled thereto, unless there has been served personally upon such corporation or other person a certified copy of an order enjoining such payment or transfer made by the surrogate's court having jurisdiction of the decedent's estate or by another court of competent jurisdiction. A corporation or other person paying or transferring any funds or property described in clause (G) of subparagraph of this paragraph to a person otherwise entitled thereto, shall be held harmless and free from any liability for making such payment or transfer, in any action or proceeding which involves such funds or property. Such order may be made, on notice to such persons and in such manner the court may direct, upon application of the surviving spouse or any other interested party and on proof that the surviving spouse has cised his or her right of election under paragraph (a). Service of a certified copy of such order on the corporation or other person holding such fund or property shall be a defense, during the effective period of the order, in any action or proceeding which involves such fund or property.

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(5) This paragraph shall not impair or defeat the rights of creditors of the decedent with respect to any matter as to which any such creditor has rights.

(6) In case of a conflict between this paragraph and any other provision of law affecting the transactions described in subparagraph (1) of this paragraph controls.

(7) If any part of this section is preempted by federal law with respect to a payment or an item of property included in the net estate, a person who, not for value, received that payment or item of property is obligated to return to the surviving spouse that payment or item of property or is personally liable to the surviving spouse for the amount of that payment or the value of that item of property, to the extent required under this section.

(c) General provisions governing right of election.

(1) Where an election has been made under this section, the will or other instrument making a testamentary provision, as the case may be, is valid as to the residue after the share to which the surviving spouse is entitled has been deducted, and the terms of such will or instrument remain otherwise effective so far as possible, subject, however, to the provisions of clause (a)(4)(A).

(2) Except as otherwise expressly provided in the will or other instrument making a testamentary provision, ratable contribution to the share to which the surviving spouse is entitled shall be made by the beneficiaries and distributees (including the recipients of any such testamentary provision), other than the surviving spouse, under the decedent's will, by intestacy under 4-1.1 and other instruments making EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law