Thank you for using JustAnswer. Yes, assuming that the property is not in a trust and you don't sign a prenup agreement that waives any right that you would have to it. If the decedent died with a Will, the surviving spouse is still entitled to a minimum amount irrespective of what was left to him or her in the Will. For example, if the surviving spouse was left out of the Will or received only a small amount in comparison to the size of the decedent's estate (approximately one-third), then the surviving spouse can “elect” or choose to take the amount to which they are entitled under New York law. This amount is known as the “elective share.” Unless the surviving spouse previously gave up this right in writing (for instance in a prenuptial agreement
), the surviving spouse has the option of taking their elective share for a limited time after the decedent’s death. So be warned: the clock is running!The elective share formula can generally be stated as follows:If the decedent’s assets consisted of $50,000 or less (without counting life insurance proceeds), the surviving spouse is entitled to all of the estate assets. If the decedent’s assets were more than $50,000 (without counting life insurance proceeds), then the surviving spouse is entitled to $50,000 or 1/3 of the estate assets, whichever is more. All of the decedent's assets except for life insurance proceeds owned by the decedent around the time of death may be subject to this rule, such as: the probate estate, gifts in contemplation of death, real property, joint bank accounts, assets with Pay On Death designations, Totten Trust accounts, etc. Hope that clears things up a bit. If you have any other questions, please let me know. If not, and you have not yet, please rate my answer AND press the "submit" button, if applicable. Please note that I don't get any credit for my answer unless and until you rate it a 3, 4, 5 (good or better). Thank you, ***** ***** luck to you!