What a surviving spouse in New York needs to know when a spouse dies without a will

Short answer: As a surviving spouse in New York you have statutory inheritance rights, priority to serve as personal representative (administrator) of the estate, and the ability to ask Surrogate’s Court to stop family members from making unilateral decisions about the estate or funeral. You must act through the Surrogate’s Court to get formal authority (letters of administration) to access many assets. This page explains those rights and the practical steps you can take.

Disclaimer

This is general information only and not legal advice. I am not a lawyer. For help with a particular case, consult a licensed New York attorney experienced in estates and Surrogate’s Court practice.

Detailed answer — your core rights under New York law

1. Who inherits when there is no will (intestacy)

New York’s intestacy rules determine how the decedent’s property is distributed if there is no will. The surviving spouse will receive either the entire estate or a statutory share depending on whether the decedent left surviving descendants and whether those descendants are also descendants of the surviving spouse. The rules are set out in the Estates, Powers & Trusts Law (EPTL). See EPTL § 4-1.1 for the statutory scheme: https://www.nysenate.gov/legislation/laws/EPT/4-1.1.

Typical outcomes (hypothetical examples):

• If the decedent left only a surviving spouse and no surviving children or parents, the spouse generally inherits the entire estate.
• If the decedent left a surviving spouse and children who are all also children of the surviving spouse, the spouse generally inherits everything.
• If the decedent left a surviving spouse and children who are not all the surviving spouse’s children (for example, decedent has children from a prior relationship), the spouse receives a statutory portion and the children share the remainder under the intestacy rules.

2. Priority to be appointed administrator (control over estate matters)

If there is no will, someone must be appointed by the Surrogate’s Court to administer the estate (an administrator). Under New York law, certain persons have priority to be appointed. A surviving spouse is among the highest-priority people who may petition the Surrogate’s Court for letters of administration. See the Surrogate’s Court Procedure Act (SCPA) provisions governing appointment: https://www.nysenate.gov/legislation/laws/SCPA/1001. For general Surrogate’s Court information see the New York State courts page: https://www.nycourts.gov/courts/surrogates/.

Why that matters: banks, title companies, and many institutions will not release funds, property deeds, or allow account changes without court-issued letters of administration. If the decedent’s family has “cut you out” and is acting as though they control the estate, you can file for letters of administration to obtain legal authority to act.

3. Emergency and interim relief

If family members are making decisions that could harm the estate (selling property, moving assets, preventing burial, or denying you access to personal effects), the Surrogate’s Court can issue interim orders—temporary letters of administration, temporary injunctions, or other emergency relief—while the court resolves who should serve permanently.

4. Funeral and disposition decisions

Priority for the right to control disposition (funeral, burial, cremation) usually follows next-of-kin rules. A surviving spouse generally has top priority to make disposition decisions. If family members are excluding you from burial decisions, you can apply to the appropriate court to enforce your right of disposition.

5. Challenging a relative who claims control

If a family member tries to act as administrator without court authority, you can petition the Surrogate’s Court to (a) appoint you as administrator, (b) remove or limit the other person if they were improperly appointed or are breaching fiduciary duties, and (c) require an accounting of estate property. The court can impose sanctions and order return of assets improperly taken.

6. Other protections that may apply

• Family allowance and support: New York law provides for a family allowance or temporary support to a surviving spouse and minor children during administration to cover reasonable living expenses. (See EPTL provisions on family allowance.)
• Creditors and bills: The estate, not you personally (absent co-signed debts), generally pays the decedent’s debts. But you’ll need court authority to handle estate assets to satisfy valid claims.
• Spousal elective rights / homestead: New York law has protections for surviving spouses; consult an attorney about homestead and other statutory protections if the residence is at issue.

Practical next steps you can take right away

1. Get multiple certified copies of the death certificate and your marriage certificate.
2. Contact the bank(s), mortgage company, and insurance companies to let them know of the death; ask what documents they require to release funds (banks typically require letters of administration or a small estate procedure).
3. Gather an inventory of decedent’s assets and any notices (bills, statements, titles).
4. If family members are acting unilaterally, file a petition for letters of administration in the Surrogate’s Court in the county where the decedent lived. As a surviving spouse, you can ask for priority appointment and emergency interim letters if needed.
5. If someone else already was appointed and is acting improperly, file papers asking the Surrogate’s Court for review, accounting, or removal for breach of fiduciary duty.
6. Consider hiring a New York attorney who handles estates and probate to prepare and file the necessary petitions and, if needed, seek emergency relief.

Helpful hints

• Act quickly. Without letters of administration, banks and title companies often will not turn over property or funds—and relatives can move assets.
• Keep records. Note who says or does what to the estate and preserve copies of all communications and documents.
• Be prepared to prove your marriage and identity (marriage certificate, photo ID) and the decedent’s domicile (address where they lived) for the Surrogate’s Court filing.
• Ask the bank about a temporary release for funeral expenses—some banks will honor small disbursements for burial with a certified death certificate even before letters issue.
• If the estate is small, ask an attorney about administrative shortcuts or small estate procedures that can be faster and cheaper than a full administration.
• Do not sign away estate claims under pressure. If relatives ask you to sign documents, have a lawyer review them first.

Where to find the relevant law and court rules

• New York Estates, Powers & Trusts Law (intestacy rules): EPTL § 4-1.1 — https://www.nysenate.gov/legislation/laws/EPT/4-1.1.
• Surrogate’s Court Procedure Act (appointment of administrators and court procedures): SCPA provisions — see e.g. SCPA § 1001: https://www.nysenate.gov/legislation/laws/SCPA/1001. For full SCPA text, search the New York State Legislature/Senate site.
• New York State Unified Court System — Surrogate’s Court information and forms: https://www.nycourts.gov/courts/surrogates/.

When to get a lawyer

If family members are actively excluding you, transferring assets, denying burial rights, or if the estate has significant assets (real estate, business interests, retirement accounts), hire a New York attorney who regularly handles Surrogate’s Court matters. An attorney can prepare the necessary petitions, request interim emergency orders, and represent you at hearings.

Again, this is general information and not legal advice. For case-specific guidance, speak to a licensed New York attorney.