What Are the Inheritance Rules in New York? (w/Examples) + FAQs

New York inheritance rules decide who gets a person’s money, home, and belongings after they die, and those rules follow a strict order set by state law. The New York Estates, Powers and Trusts Law (EPTL) controls who inherits, while the Surrogate’s Court Procedure Act (SCPA) controls how the court moves the property. Federal rules like the IRC §1014 step-up in basis and the federal estate tax also apply on top of New York’s own tax and probate system.

When a person dies with a valid will, the court follows the will through probate in the Surrogate’s Court of the county where the person lived. When a person dies without a will, the state’s intestacy statute, EPTL 4-1.1, picks the heirs in a fixed order. A surviving spouse in New York also has a protected right called the elective share under EPTL 5-1.1-A, which can override a will.

About 55% of American adults do not have a will, according to a 2024 Caring.com survey, so most New York families end up using intestacy rules at least once. Inheritance in New York also touches non-probate transfers, trusts, joint accounts, and the state’s estate tax “cliff,” and each of these has its own trap. This guide walks through every layer in plain English with named examples, scenario tables, common mistakes, and frequent questions.

Here is what you will learn:

• ⚖️ How New York’s intestacy order picks heirs when there is no will
• 💍 How the spousal elective share protects a husband or wife
• 🏠 How non-probate assets like joint accounts and trusts pass outside the will
• 💰 How the federal and New York estate taxes hit your estate in 2026
• 📝 How to avoid the top mistakes that cost New York families time and money

Federal Inheritance Rules That Apply First

Federal law sets the outer frame for every New York inheritance, and it controls taxes, retirement accounts, and the tax basis of inherited property. The federal government does not decide who inherits, because that is state law, but it does decide how much tax the estate owes and how heirs report gains later. The Internal Revenue Code and federal rules on ERISA retirement plans sit above EPTL and can change what an heir actually receives.

Federal Estate Tax and Exemption

The federal estate tax is a tax on the right to transfer property at death, and it is reported on IRS Form 706. The 2026 federal estate tax exemption is around $7 million per person after the scheduled sunset of the 2017 Tax Cuts and Jobs Act, as explained by the Congressional Research Service. An estate that exceeds the exemption pays up to 40% on the excess, and that tax is due nine months after the date of death.

The consequence of ignoring Form 706 is harsh, because the IRS can add penalties and interest and can place a federal estate tax lien on the home. A common misconception is that only the super-rich file Form 706, but a surviving spouse must file it to elect portability, even if no tax is owed. Portability lets a widow or widower use the unused exemption of the first spouse to die, doubling the shield to roughly $14 million for the surviving spouse’s estate.

Step-Up in Basis Under IRC §1014

The step-up in basis is one of the most valuable federal inheritance rules, and it resets the cost basis of inherited property to its fair market value on the date of death. The rule lives in IRC §1014 and can erase decades of capital gains for heirs who sell soon after inheriting. Without the step-up, heirs would owe capital gains tax on every dollar of growth from the original purchase price.

For example, if Maria’s mother bought a co-op in Queens in 1980 for $40,000 and it is worth $800,000 when she dies in 2026, Maria’s new basis is $800,000. If Maria sells for $810,000, she reports only $10,000 of gain. The consequence of missing a date-of-death appraisal is that the IRS may challenge the new basis and force the heir to pay tax on phantom gains.

Federal Rules for Retirement Accounts

Retirement accounts like 401(k)s and IRAs pass by beneficiary designation, not by will, under the SECURE Act and ERISA. A non-spouse beneficiary must usually empty an inherited IRA within 10 years, per IRS Publication 590-B. A surviving spouse can instead roll the account into their own IRA and delay required distributions until age 73.

The consequence of ignoring the 10-year rule is a 25% excise tax on amounts not withdrawn on time. A common misconception is that a will controls a 401(k), but the plan document and the beneficiary form always win, even against a newer will. A named ex-spouse on an old beneficiary form can inherit the entire account, as the U.S. Supreme Court confirmed in Kennedy v. DuPont Savings Plan.

New York Intestate Succession Rules

When a New York resident dies without a valid will, EPTL 4-1.1 tells the Surrogate’s Court exactly who inherits. The statute ranks family members in a strict order, and the court does not care about fairness, verbal promises, or close friends. Intestate means “no will,” and the state essentially writes a default will for the decedent.

Spouse and Children

If the decedent leaves a spouse and children, the spouse gets the first $50,000 plus half of the remaining estate, and the children split the rest equally. If there are only a spouse and no children, the spouse takes everything. If there are only children and no spouse, the children split the estate equally per capita at each generation.

For example, if David dies in the Bronx with a $350,000 estate, a wife named Rosa, and two adult children, Rosa gets $50,000 off the top plus $150,000 (half of $300,000), for a total of $200,000. Each child then gets $75,000. The consequence of this split is that Rosa may not have enough to keep the family home if the house is the main asset, which pushes many surviving spouses to file for the elective share instead.

Parents, Siblings, and Distant Relatives

If there is no spouse and no children, the estate goes to the decedent’s parents, then to siblings, then to nieces and nephews, and then to grandparents and more distant relatives. New York follows a “per capita at each generation” rule under EPTL 1-2.16, which is more equal than the older per stirpes rule. If no relative up to great-grandchildren of grandparents can be found, the property “escheats” to the State of New York.

For example, if Linda dies unmarried and childless in Manhattan with a $600,000 estate and is survived only by two nieces and one nephew from three different predeceased siblings, each niece and nephew takes $200,000. The consequence of having no close family is that the state can claim the estate if distant relatives cannot be located within three years, per SCPA 2225.

Adopted, Non-Marital, and Posthumous Children

Adopted children inherit from adoptive parents exactly like biological children under Domestic Relations Law §117. Non-marital children inherit from a father only if paternity is established by a court order, an acknowledgment of paternity, or clear and convincing evidence like DNA. Posthumous children conceived before death but born after inherit as if they had been alive on the date of death.

The consequence of failing to establish paternity is complete disinheritance from the father’s side, which was confirmed in Matter of Poldrugovaz. A common misconception is that a stepchild inherits automatically, but a stepchild inherits nothing under intestacy unless legally adopted. Grandparents often adopt grandchildren just to fix this gap.

Wills and Probate in New York

A valid New York will must be in writing, signed by the testator, witnessed by two people, and published as a will, under EPTL 3-2.1. Probate is the court process that proves the will is valid and appoints an executor. The Surrogate’s Court in the decedent’s county of residence handles every step, and the process usually takes 7 to 18 months.

Filing the Will for Probate

The named executor files the original will, a death certificate, and a probate petition in the Surrogate’s Court. Every person who would inherit under intestacy must be notified with a citation, so the court can hear objections. The court issues “Letters Testamentary” once probate is granted, which gives the executor legal power to sell property, pay bills, and distribute assets.

For example, if James dies in Nassau County and leaves a will naming his daughter Priya as executor, Priya files in Nassau County Surrogate’s Court with the original signed will. The consequence of losing the original will is a presumption that the testator destroyed it, which can force the estate into intestacy.

Small Estate Voluntary Administration

If the decedent owned less than $50,000 of personal property and no real estate, the family can skip full probate and use voluntary administration under SCPA Article 13. The process is faster, cheaper, and uses a simplified form. Real estate of any value blocks this shortcut and forces regular probate or administration.

The consequence of ignoring the $50,000 threshold is that heirs may waste money on a full probate when a small-estate affidavit would have worked in weeks. A common misconception is that small-estate administration skips creditors, but creditors still have seven months to file claims.

Will Contests and Grounds to Challenge

A will can be contested for lack of capacity, undue influence, fraud, duress, or improper execution, under SCPA 1408. The challenger must file objections after the executor serves the citation. The court then opens discovery under SCPA 1404, which lets objectants depose the drafting attorney and witnesses.

For example, in Matter of Kumstar, the Court of Appeals held that a testator must understand the nature of the act, the property, and the natural objects of her bounty. The consequence of losing a will contest is often a full or partial “in terrorem” forfeiture if the will had a no-contest clause under EPTL 3-3.5.

The Spousal Right of Election

New York does not allow a spouse to be cut out completely. EPTL 5-1.1-A gives a surviving spouse the right to claim an “elective share” equal to the greater of $50,000 or one-third of the net estate. This right reaches beyond the probate estate and captures many non-probate transfers made within one year of death.

What Counts in the Elective Share

The elective share applies to the “augmented estate,” which includes probate assets, joint accounts, Totten trusts, revocable trusts, retirement accounts over the spouse’s share, and gifts made within one year of death over the annual gift exclusion. The rule prevents a spouse from quietly emptying accounts the day before death. This broad reach was explained in Matter of Reynolds.

For example, if Harold dies in Suffolk County with a $900,000 probate estate and a $600,000 revocable trust that leaves everything to his son from a first marriage, his widow Alice can elect against the $1.5 million combined total and claim $500,000. The consequence of missing the six-month deadline in EPTL 5-1.1-A(d) is permanent loss of the right.

Waiver and Disqualification

A spouse can waive the elective share in a written, acknowledged prenuptial or postnuptial agreement, under EPTL 5-1.1-A(e). A spouse is also disqualified if the couple was divorced, the marriage was void, the spouse abandoned the decedent, or the spouse failed to support the decedent when required, under EPTL 5-1.2.

For example, in Matter of Riefberg, a spouse was disqualified because the abandonment was proven by clear and convincing evidence. The consequence of disqualification is total loss of both the elective share and any intestate share. A common misconception is that separation alone disqualifies a spouse, but a simple separation without abandonment is not enough.

New York Estate Tax and the Cliff

New York imposes its own estate tax under Tax Law §952, separate from the federal tax. The 2026 New York basic exclusion amount is about $7.16 million, and rates run from 3.06% to 16%. The infamous “cliff” means an estate that exceeds the exemption by more than 5% loses the entire exemption.

How the Cliff Works

If the New York taxable estate is 105% or more of the exemption, the estate pays tax on the entire amount from dollar one, not just the excess. The cliff was designed to phase out the exemption for larger estates, and it creates a brutal marginal rate near the edge. A New York estate just $1 over the cliff can owe hundreds of thousands more than an estate $1 below it.

For example, if Nina dies in Westchester with a $7.16 million estate, she owes zero New York estate tax. If her friend Carlos dies the same day with a $7.52 million estate, Carlos’s estate could owe roughly $678,000 in New York estate tax. The consequence is that careful planners use “Santa Clause” bequests to charity to avoid the cliff, as described by the NYSSCPA.

New York Estate Tax Return

The estate files Form ET-706 within nine months of death if the estate exceeds the basic exclusion. No portability exists between spouses in New York, which is a major difference from federal law. A common misconception is that a trust automatically avoids New York estate tax, but revocable trusts are fully taxable at death.

Non-Probate Transfers in New York

Many assets skip probate entirely because they have a built-in beneficiary or a survivorship feature. Non-probate transfers include joint accounts with rights of survivorship, Totten trusts (payable-on-death bank accounts), transfer-on-death securities, life insurance, retirement accounts, and assets in a funded revocable trust. These assets pass to the named person by contract or title, not by will.

Joint Accounts and Totten Trusts

A joint bank account with right of survivorship passes to the survivor under Banking Law §675, which creates a rebuttable presumption of survivorship. A Totten trust is a “in trust for” account that pays to the named beneficiary on death. Both bypass the will but remain in the augmented estate for elective-share purposes.

For example, if Irene adds her son Mark to her Citibank account “for convenience,” the statute still presumes Mark owns the survivor share at death. The consequence of this presumption is that a convenience-only intent must be proven with clear and convincing evidence, per Matter of Timoshevich. A common misconception is that joint accounts always defeat a will, but the elective share and tax still apply.

Revocable Living Trusts

A revocable trust is a written document under EPTL 7-1.17 that holds the grantor’s property during life and distributes it at death. Trust assets avoid probate, keep the terms private, and can coordinate out-of-state property. The grantor can amend or revoke the trust at any time while competent.

The consequence of failing to fund the trust is that the assets still go through probate, which defeats the main purpose. A common misconception is that a revocable trust avoids estate tax, but the IRS and New York tax it the same as a will. Trusts shine for privacy, disability planning, and avoiding multiple probates for real estate in several states.

Three Common New York Inheritance Scenarios

Below are three of the most common fact patterns New York families face, shown as scenario tables.

Scenario 1: Dying Without a Will, Spouse and Kids

Family Situation	Who Inherits and How
Married with two biological children, $400,000 estate	Spouse takes $50,000 plus $175,000 (half of the $350,000 balance); each child takes $87,500
Married with a stepchild only, not adopted	Spouse inherits everything; stepchild receives nothing
Married with one child from a prior relationship	Spouse takes $50,000 plus half; the one child takes the other half

Scenario 2: Second Marriage and a Disinheritance Attempt

Attempted Plan	Legal Result in New York
Husband’s will leaves all to children from first marriage	Second wife can file an elective share for one-third of the augmented estate
Husband moves assets into a revocable trust for his kids	Trust assets still count in the augmented estate under EPTL 5-1.1-A
Husband and wife signed a valid prenuptial waiver	Wife cannot elect; children inherit as the will directs

Scenario 3: Out-of-State Real Estate

Property Location	Procedure Needed
Primary home in Queens, vacation home in Florida	Main probate in Queens, ancillary probate in Florida
All assets in a funded revocable trust	No probate in either state; trustee distributes directly
Florida home in joint tenancy with spouse	Passes automatically by survivorship; no probate needed

Three Named Examples to Make It Real

Real examples show how the rules play out in ordinary New York families.

Example 1: Priya in Brooklyn

Priya’s father dies without a will in Park Slope, leaving a brownstone worth $1.8 million and $200,000 in cash. His wife Anita and Priya are the only heirs. Under EPTL 4-1.1, Anita takes $50,000 plus half of the remaining $1.95 million, which is $1,025,000 total. Priya inherits $975,000, but the brownstone cannot be split in half, so the family must either sell it or one buys out the other.

Example 2: Marcus in Buffalo

Marcus’s uncle dies in Erie County with a valid will leaving everything to a charity, but Marcus was the primary caregiver for the last decade. Marcus has no legal claim because he is not a spouse, child, or named beneficiary. The consequence is that unpaid caregiving does not create inheritance rights in New York, which is why caregivers should ask for a written promise or a life estate deed during the person’s lifetime.

Example 3: Sofia in Manhattan

Sofia’s husband Paolo dies with a $10 million estate and leaves only $500,000 to Sofia in his will. Sofia files a timely elective share claim under EPTL 5-1.1-A(d) and receives $3.33 million instead. The New York estate tax then kicks in, because $10 million is far over the cliff, so the estate owes roughly $1 million in state tax, which is planned around with a credit shelter trust.

Mistakes to Avoid

These are the top errors New York families make with inheritance, and each one has a real cost.

• Dying without a will, which forces the rigid intestacy order and often disinherits unmarried partners
• Forgetting to update beneficiary forms after divorce, which can send a 401(k) to an ex-spouse
• Keeping the home in sole name without a trust or TOD deed, which forces probate
• Missing the six-month elective share deadline, which permanently ends the spouse’s claim
• Ignoring the New York estate tax cliff, which can cost hundreds of thousands in extra tax
• Naming a minor as a direct beneficiary, which forces a costly court-supervised guardianship
• Using a handwritten will without two witnesses, which is invalid under EPTL 3-2.1 for non-soldiers
• Leaving the original will in a safe deposit box only the decedent could open, which delays probate
• Failing to file Form 706 for portability, which wastes millions of federal exemption
• Treating a stepchild as an automatic heir, which leads to complete disinheritance without adoption
• Adding a child to a deed to “avoid probate,” which triggers gift tax and loses the step-up in basis

Do’s and Don’ts for New York Heirs

These quick rules help both executors and beneficiaries protect the estate.

Do’s

• Do locate the original will first, because copies often cannot be probated under SCPA 1407
• Do order at least ten certified death certificates, because every bank and agency needs one
• Do file the probate petition within a reasonable time, because delay invites creditor claims and family fights
• Do inventory digital assets under EPTL Article 13-A, because passwords die with the owner
• Do hire a New York estate attorney, because Surrogate’s Court procedure is highly technical

Don’ts

• Don’t distribute assets before paying debts and taxes, because executors are personally liable
• Don’t sell real estate without Letters Testamentary, because the buyer’s title will be defective
• Don’t ignore the seven-month creditor claim window, because late claims can still hit the estate
• Don’t commingle estate funds with personal funds, because it breaches fiduciary duty
• Don’t forget income in respect of a decedent (IRD), because IRAs still carry ordinary income tax

Pros and Cons of Common Planning Tools

Here is how the main New York inheritance tools compare on trade-offs.

Pros

• Revocable trust: avoids probate, keeps the estate private, handles disability
• Last will and testament: simple, inexpensive, and flexible during life
• Joint ownership: instant transfer at death with no court involvement
• Beneficiary designations: fast, free, and override the will
• Life insurance: delivers tax-free cash to heirs to pay taxes and debts

Cons

• Revocable trust: costs more upfront and requires retitling every asset
• Last will and testament: triggers public probate and court delays
• Joint ownership: creates gift tax risk and exposes the asset to the joint owner’s creditors
• Beneficiary designations: out-of-date forms can send money to the wrong person
• Life insurance: premiums rise with age and proceeds may be in the taxable estate if owned by the decedent

Process: Step-by-Step New York Probate

The New York probate process follows a defined path set by the SCPA, and each step has its own form and fee.

Step 1: Open the Estate

The executor files the probate petition, the original will, and the death certificate in the Surrogate’s Court of the county of residence. The filing fee ranges from $45 to $1,250 based on estate size, per SCPA 2402. A family tree affidavit is often required to prove the list of distributees.

Step 2: Notice and Citation

The court issues a citation to every distributee who would have inherited under intestacy. Each person has a chance to appear and object. If no one objects, the court admits the will and issues Letters Testamentary to the executor.

Step 3: Marshal Assets and Pay Debts

The executor opens an estate bank account, collects assets, pays valid debts, and files the decedent’s final income tax return on IRS Form 1040 and NY IT-201. Creditors have seven months to file claims. The executor also files any federal Form 706 and New York Form ET-706 if required.

Step 4: Account and Distribute

The executor prepares an accounting that shows every dollar in and out. Beneficiaries sign receipts and releases, or the executor can file a judicial accounting under SCPA 2208. Once the court approves, the executor distributes the remaining assets and closes the estate.

Key Court Rulings to Know

New York case law shapes how inheritance rules apply in close cases.

Matter of Ranftle

The Matter of Ranftle decision confirmed that a same-sex marriage validly entered out of state was recognized for inheritance in New York even before the state legalized same-sex marriage. The ruling set the stage for the later full recognition under the Marriage Equality Act. The consequence is that a surviving same-sex spouse today inherits exactly like any other spouse.

Matter of Seviroli

In Matter of Seviroli, the Appellate Division clarified that undue influence requires motive, opportunity, and actual exercise of influence. The case set a high bar for will contests, which protects testators who favor one child over another. The consequence is that simple unfairness, standing alone, does not void a will.

Matter of Kumstar

The Court of Appeals in Matter of Kumstar defined testamentary capacity clearly, and the decision is cited in almost every New York will contest. The ruling protects elderly testators from easy challenges based on minor forgetfulness. Full dementia or delusions are required to strike down a will for capacity.

Key Entities in New York Inheritance

• Surrogate’s Court: the specialized trial court that handles every estate, will, and trust matter in New York
• Executor: the person named in the will to administer the estate after court appointment
• Administrator: the person appointed by the court when there is no will, under SCPA 1001
• Distributee: an heir who would inherit under intestacy, entitled to notice by citation
• Beneficiary: a person named in a will, trust, or beneficiary form
• New York State Department of Taxation and Finance: collects the state estate tax and issues ET-706 rulings
• Internal Revenue Service: collects federal estate and income taxes on the estate
• Public Administrator: steps in when no family member can or will serve, under SCPA Article 11

FAQs

Does New York have a community property rule?

No. New York is an equitable distribution state, not a community property state, so each spouse owns what is titled in their name and can leave it by will, subject to the elective share under EPTL 5-1.1-A.

Can I disinherit my spouse in New York?

No. A surviving spouse in New York can claim the greater of $50,000 or one-third of the augmented estate through the elective share, unless a valid written waiver or a disqualifying act like abandonment applies.

Can I disinherit my adult children in New York?

Yes. New York law does not give adult children any forced share, so a parent can leave them nothing by will, as long as the will is valid and not the product of undue influence.

Does a will from another state work in New York?

Yes. Under EPTL 3-5.1, a will that was validly executed where it was signed or where the testator lived is admissible in New York, which usually avoids the need to redo the document after a move.

Do stepchildren inherit in New York?

No. Stepchildren do not inherit under intestacy in New York unless they were legally adopted, which is why many blended families use wills or trusts to include a stepchild.

Is probate required in New York?

Yes. Probate is usually required when the decedent owned assets in their sole name worth more than $50,000, although small estates under $50,000 with no real estate can use voluntary administration.

Does New York tax inherited money as income?

No. Beneficiaries do not pay New York or federal income tax on the value of an inheritance, but they do pay income tax on later earnings and on taxable distributions from inherited retirement accounts.

Can a creditor reach my inheritance?

Yes. A beneficiary’s personal creditors can usually reach an outright inheritance once distributed, although a properly drafted spendthrift trust can protect assets under EPTL 7-1.5.

Do I need a lawyer for New York probate?

No. A lawyer is not legally required, but Surrogate’s Court procedure is technical, and most executors hire counsel to avoid personal liability for missed deadlines or tax filings.

Does a living trust avoid the New York estate tax?

No. Revocable living trusts are included in the New York gross estate and taxed the same as assets passing by will, although irrevocable trusts funded years before death can remove assets from the taxable estate.

How long do I have to contest a will in New York?

Yes, you have time, but it is short; objections must be filed before the will is admitted to probate, typically after the citation return date set by the Surrogate’s Court under SCPA 1410.

Can a non-citizen inherit in New York?

Yes. Non-citizens can inherit in New York, but a non-citizen surviving spouse does not qualify for the unlimited federal marital deduction unless the assets pass through a Qualified Domestic Trust (QDOT) under IRC §2056A.