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testamentary provisions, which contribution may be made in cash or in specific property or partly in cash and partly in such property the person required to make the contribution hereunder in his or her sole discretion shall determine.

(3) The right of election is personal to the surviving spouse, except
that an election may be made by :
(A) The guardian

of
the property of

infant

spouse, when so authorized by the court having jurisdiction of the decedent's estate.

(B) The committee of an incompetent spouse, when so authorized by the court that appointed the committee.

(C) The conservator of a conservatee spouse, when so authorized by the court that appointed the conservator.

(D) The guardian ad litem for the surviving spouse when so authorized by the court that appointed such guardian.

(4), Any question arising as to the right of election shall be determined by the court having, jurisdiction of the decedent's estate

in à proceeding brought for that purpose on notice to all interested persons in such manner as the court may direct, or in a proceeding for the judicial settlement of the accounts of the personal representative.

(5) Upon application by a surviving spouse who has made an election under this section, the court may make an order cancelling such election, provided that no adverse rights have intervened and no prejudice is shown to creditors of such spouse or other persons interested in the estate. Such application shall be made on notice to such persons and in such manner as the court 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 the county in which any real property of the decedent is situated.

(6) The right of election granted by this section is not available to the spouse of a decedent who was not domiciled in this state at the time of death, unless such decedent has elected, under paragraph (h) of 3-5.1, to have the disposition of his or her property situated in this state governed by the laws of this state.

(7) The decedent's estate shall include all property of the decedent wherever situated.

(8) An election made by the surviving spouse under this section is in lieu of any right of dower to which such spouse may be entitled.

(9) The references in this paragraph to sections of the United States Internal Revenue Code are to the Internal Revenue Code of 1986, amended. Such references, however, shall be deemed to constitute references to any corresponding provisions of any subsequent federal tax code.

(d) Procedure for exercise of right of election.

(1) An election under this section must be made within six months from the date of issuance of letters testamentary or of administration, the case may be, but in no event later than two years after the date of decedent's death. 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. Such notice may be served by mailing & 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 708 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

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), 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 that twelve months have not elapsed since the issuance of the letters. An application for relief from the default and for an extension of time to elect

shall be made upon petition 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

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pendency of an action in the office of the clerk of each county in which real property of the decedent is situated.

(3) The time limited in this paragraph for making an election is exclusive and shall not be suspended or otherwise affected by any provision of law, except that the surrogate may, in his or her discretion, permit an election to be made in behalf of infant incompetent spouse at any time up to, but no later than, the entry of the de ee of the first judicial account of the representative of the estate, made more than seven months after the issuance of letters.

(e) Waiver or release of right of election. (1) A spouse, during the lifetime of the other, may waive or release a right of election, granted by this section, against a particular or any last will or a testamentary substitute, as described in subparagraph (b) (1) made by the other spouse. A waiver or release of all rights in the estate of the other spouse is a waiver or release of a right of election against any such last will or testamentary provision.

(2) To be effective under this section, a waiver or release must be in writing and subscribed by the maker thereof, and acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property.

(3) Such waiver release is effective, in accordance with its terms, whether:

(A)'Executed before or after the marriage of the spouses.

(B) Executed before, or after September first, nineteen hundred sixty-six.

(C) Unilateral in form, executed only by the maker thereof, or bilateral in form, executed by both spouses.

(D) Executed with or without consideration.
(E) Absolute or conditional.

(4) If there is in effect at the time of the decedent's death a waiver executed by the surviving spouse with respect to any survivor benefit, or right to such benefit, under subsection (a) (11) of section four hundred one or section four hundred seventeen of the United States Internal Revenue Code, then such waiver shall be deemed to be a waiver within the meaning of this paragraph (e) against the testamentary substitute stituting such benefit.

§ 11. Section 5-3. 1 of the estates, powers and trusts law, as amended by chapter 103 of the laws of 1983, is amended to read as follows: § 5-3. 1 Exemption for benefit of family

(a) If a person dies, leaving a surviving spouse or children under the age of twenty-one years, the following items of property are not assets of the estate but vest in, and shall be set off to such surviving spouse, unless [he is) disqualified, under 5-1.2, from taking an elective or distributive Share of the decedent's estate. In case there is no surviving spouse or such spouse, if surviving, is disqualified, such items of property vest in, and shall be set off to the decedent's children under the age of twenty-one years:

(1) All housekeeping utensils, musical instruments, sewing machine, household furniture and appliances, including but not limited to computers and electronic devices, used in and about the house, fuel, provisions and clothing of the decedent, not exceeding in

aggregate value [five] ten thousand dollars.

(2) The family bible, family pictures (and school books ], video tapes, and computer tapes, discs, and software used by such family, and books not exceeding in value one (hundred and fifty) thousand dollars[, which were part of the family library),

(3) Domestic animals with their necessary food for sixty days, farm machinery, one tractor and one lawn tractor, not exceeding in

aggregate value [ten] fifteen thousand dollars.

$4) One motor vehicle not exceeding in value [ten] fifteen thousand dollars. In the alternative, if the decedent shall have been the owner of one or more motor vehicles each of which exceed fifteen thousand dollars in value, the surviving spouse or decedent's children may acquire one such motor vehicle from the estate, regardless of the fact that the decedent may also have been the owner of another motor vehicle of lesser value than fifteen thousand dollars, by payment to the estate of the amount by which the value of the motor vehicle exceeds fifteen thousand dollars; in lieu of receiving such motor vehicle, the surviving spouse or children may elect to receive in cash an amount equal to the value of EXPLANATION-Matter in italics is new; matter in brackets [ ] is old law

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the motor vehicle, not to exceed fifteen thousand dollars. If any motor vehicle so acquired by the spouse or children of the decedent was a specific legacy in decedent's will, the payment to the estate of the amount by which the value of the motor vehicle exceeds fifteen thousand dollars shall vest in the specific legatee.

(5) Money or other personal property not exceeding in value [one] fifteen thousand dollars, except that where assets are insufficient to pay the reasonable funeral expenses of the decedent, the personal representative must apply such money or other personal property to

defray any deficiency in such expenses.

(b) No allowance shall be made in money or other property, if the items of property described in [subparagraphs] subparagraph (1), (2), (3) or (4) are not in existence when the decedent dies.

(c) The items of property, set off as provided in paragraph (a), shall, at least to the extent thereof, be deemed reasonably required for the support of the surviving spouse or children under the age of twentyone years of the decedent during the settlement of the estate.

(d) As used in this section, the term "value" shall refer to the fair market value of each item, reduced by, all outstanding security interests or other encumbrances affecting the decedent's ownership of said item.

§ 12. The opening paragraph of paragraph (a) of section 5-4.4 of the estates, powers and trusts law as amended by chapter 357 of the laws of 1975, is amended to read as follows:

The damages, as prescribed by 5-4.3, whether recovered in an action or by settlement without an action, are exclusively for the benefit of the decedent's distributees and, when collected, shall be distributed to the persons entitled thereto under 4-1.1 and 5-4.5, except that where the decedent is survived by a parent or parents and a spouse and no issue, the parent or parents will be deemed to be distributees for purposes of this section. The damages shall be distributed subject to the following:,

§ 13. Section 5-4.5 of the estates, powers and trusts law, as amended by chapter 67 of the laws of 1981, is amended to read as follows: š 5-4.5 [Children born out of wedlock] Non-marital children

For the purposes of this part, non-marital child (born out of wedlock] is the distributee of his father and paternal kindred and the father and paternal kindred of a non-marital child (born out of wedlock is] are that child's [distributee] distributees to the extent

permitted by 4-1.2.

§ 14. Subparagraph 1 of paragraph (a) of section 5-4.6 of the estates, powers and trusts law, such section as renumbered by chapter 357 of the 1aws of 1975, is amended to read as follows:

(1) Approve in writing a compromise for such amount as it shall determine' to be adequate and, except for good cause shown, transfer the action to the surrogate's court which issued the letters for determination of the issues of allocation and distribution of

proceeds and related matters; or

$ 15. Subparagraph 19 of paragraph (b) of section 11-1.1 of the estates, powers and trusts law, as amended by chapter 733 of the

laws of 1984, is amended to read as follows:

(19) When a legacy, a distributive share, the proceeds of any action brought as prescribed by 5-4.1, or the proceeds of a settlement of an action brought in behalf of an infant for personal injuries are payable to an infant, incompetent, conservatee or person under disability the

does not exceed [five] ten thousand dollars, to make payment thereof to the father or mother or to some competent adult whom the infant, incompetent, conservatee or person under disability resides or who has some interest in his welfare for the use and benefit of such infant, incompetent, conservatee or person under disability. If the sum payablé to a patient in an institution in the state department of mental hygiene is not in excess of the amount which the director of the institution is authorized to receive under section 29.23 of the mental hygiene law, to make payment of such sum to such director for use as provided in that section.

§ 16. Section 13-3. 1 of the estates, powers and trusts law is amended to read as follows: § 13-3.1 Rights of payees in non-transferable United States savings

bonds Where United States savings bond is payable to a designated person, whether as owner, co-owner or beneficiary, and such bond

is

not transferable, the right of such person to receive payment of the bond according to its terms, and the ownership of the

received, shall not be impaired or defeated by any statute or rule of law govern

and

sum

person with

money

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or

f any notes

was a specie

the 2000 and dollars

ing the transfer of property by will, gift

intestacy, except

as provided in section 5-1.1-A; providedf, however,] further that nothing herein shall limit article 10 of the debtor and creditor law or 2-1.8.

§ 17. Paragraphs (b), (c) and (d) of section 13-3,2 of the estates, powers and trusts law are reléttered to be paragraphs (c), (d) and (e) and paragraph (e) of such section 13-3.2 is relettered to be paragraph (b) and amended to read as follows:

(b) This section does not limit article 10 of the debtor and creditor law, [article] articles 10-C and 26 of the tax law, or 2-1.8, 5-1.1-A or 13-3. 6.

§ 18. The article heading of article 14 of the estates, powers and trusts law, as amended by chapter 686 of the laws of 1967, is amended to read as follows:

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REPEALER; DERIVATION AND DISTRIBUTION TABLES; EFFECTIVE DATE § 19. The part heading of part 2 of article 14 of the estates, powers and trusts law, as amended by chapter 686 of the laws of 1967, is amended to read as follows:

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DERIVATION AND DISTRIBUTION TABLES

§ 20. The section heading and that portion of the distribution tables of section 14-2. 1 of the estates, powers and trusts law, indicated,

amended by chapter 686 of the laws of 1967, are amended to read as follows:

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[1-2.18] 1-2.19 2

§ 21. That portion of the distribution tables of section 14-2.2 of the estates, powers and trusts law, as indicated, as amended by chapter 686 of the laws of 1967, is amended to read as follows: DEL EPTL

SCPA 2

[1-2. 18(b)] 1-2.19(b) § 22. Subdivision 1 of section 1001 of the surrogate's court procedure act, paragraph (e) as amended by chapter 685 of the laws of 1967, is amended to read as follows:

1. Letters of administration must be granted to the persons who are distributees of an intestate and who are eligible and qualify, in the following order: (a) the surviving spouse, (b) the children, 15 the grandchildren, (d) the father or mother, le) the brothers or sisters, (f), any other persons who are distributees and who are eligible and qualify, preference being given to the person entitled to the largest share in the estate, except as hereinafter provided[.]:

(1), Where there are eligible distributees equally entitled to administer the court may grant letters of ad nistration to one or more of such persons.

(ii), If the distributees are issue of grandparents, other than aunts or uncles, on only one side, then letters of administration shall issue to the public administrator or chief financial officer of the county.

§ 23. Subdivision 1 of section 2220 of the surrogate's court procedure act, as amended by chapter 199 of the laws of 1990, is amended to read as follows:

1. Where an infant, incompetent, conservatee, or person under disability is entitled to money or property as beneficiary of an estate or to the proceeds of any action brought as prescribed in EPTL 5-4.1 or to the proceeds of a settlement of a cause of action for personal injuries, the decree or order shall direct that it be paid or delivered to the guardian, committee or conservator of the property of such person upon the EXPLANATION-Matter in italics is new; matter in brackets ( ) is old law

to be omitted.

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filing of sufficient security, except provided in EPTL 7-4.9 or 11-1. I, unless the money or property payable or deliverable to the infant, incompetent, or conservatee, or person under disability does not exceed in value [$5,000) $10,000, in which case the decree or order may order it to be paid or delivered to a parent of such person or to some competent adult with whom such person resides or who has

interest in such person's welfare, for the use and benefit of such person.

§ 24. Section 1421 of the surrogate's court procedure act, subdivision l as amended by chapter 259 of the laws of 1968, is amended to read follows: § 1421. Election by surviving spouse

1. Any person interested in obtaining a determination as to the validity or effect of an election to take a share under EPTL 5-1.1 or EPTL 5-1.1-A may present to the court in which the will was probated or from which letters of administration were issued, a petition showing his terest, the

and post-office addresses of the other persons interested and the particular question concerning which he requests

the determination of the court.

2. If the application be entertained process shall issue to all persons interested in the question to be presented to show

why the determination should not be made. On the return of process the court may take proof and shall make such decree as justice requires.

3. The validity or effect of any such election may also be determined in a proceeding for the judicial settlement of the accounts of a fiduciary.

4. For the purpose of determining the validity or effect of any election made pursuant to EPTL 5-1. 1 or EPTL 5-1.1-A, either under this section in a proceeding for the judicial settlement of the accounts of the fiduciary, à person interested shall include any person who has interest in any of the transactions described in EPTL 5-1.1 or EPTL 5-1.1-A. Where any such person has an interest as trustee of an express trust it shall be sufficient to name and serve the trustee.

5. Whenever it shall appear that a fund or property required to be included in the net estate under EPTL 5-1.1 or EPTL 5-1.1-A has not into the possession of the fiduciary of the decedent as such, the court shall fix the liability, of any person who has any interest in the fund or property

who has possession thereof, whether as trustee or otherwise.

§ 25. This act shall take effect September 1, 1992.

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CHAPTER 596

AN ACT to authorize the town of Smithtown, Suffolk county to transfer surplus operating funds of the Smithtown Pines Water District to

the general town fund Became a law July 24, 1992, with the approval of the Governor.

Passed by a majority vote, three-fifths being present. The People of the State of New York, represented in Senate and Assembly, do enact as follows:

Section 1. Notwithstanding the provisions of any other general, special or local law, any moneys on deposit to the credit of the Smithtown Pines Water District, in the town of Smithtown, Suffolk county, other than moneys required for ordinary operating expenses or for the proper and necessary payment of debt service relating to the provision of water to the residents thereof hereinbefore incurred by such town shall be transferred soon as practicable, or upon receipt immediately credited, as the case may be, to the general fund of such town. Any moneys so deposited or transferred may be used for any appropriate general town purposes or programs.

§ 2. This act shall take effect immediately.

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