In this SCPA 1421 proceeding, the decedent's surviving spouse petitions to determine the effect of her election to take a share under EPTL 5-1.1-A. Specifically, she seeks a determination that HSBC bank account 98745812 in the decedent's name in trust for his daughter and a death benefit payable by the New York City Employees' Retirement System (NYCERS) in equal shares to the decedent's three children are to be treated as testamentary substitutes subject to her elective share (EPTL 5-1.1-A[b][1][C] and [G]). The petitioner appears to be of the opinion that her elective share is "$50,000 and one-third of the residue."

The decedent died intestate on September 19, 2006 survived by the petitioner and three children. The petitioner received letters of administration for the purpose of pursuing this application. Process was served upon all three children. The petitioner is not the mother of the decedent's two sons who defaulted. The daughter appeared but did not file any objections to the relief requested.

It appears that the decedent died without any testamentary assets. NYCERS states that it is ready to pay the death benefit of $44,658.59 upon receipt of a court order. It is well settled that the pension death benefit is a testamentary substitute under EPTL 5-1.1-A(b)(1)(G) (see Matter of Alent, 271 AD2d 73 [2000]; Matter of Calligaro, 19 Misc 3d 895 [2008]; Matter of Sexton, NYLJ, July 3, 2003, at 27, col 3; Matter of Bacot, NYLJ, Sept. 24, 1999, at 28, col 5). It is also beyond question [*2]that the HSBC Totten Trust bank account, which the petitioner now alleges had a date of death value of $86,849,56, is a testamentary substitute under EPTL 5-1.1-A(b)(1)(C).

It does not appear that the decedent died with any other assets that are treated as testamentary substitutes. The petitioner's contention that she is entitled to $50,000 plus one-third of the residue of the testamentary substitutes appears to be a product of her having incorrectly combined in part her intestate share under EPTL 4-1.1(a)(1) with her elective share under EPTL 5-1.1-A(a)(2). In any event, where, as here, the value of the property subject to the elective share exceeds $50,000, the elective share is the greater of $50,000 or one-third of the net estate (EPTL 5-1.1-A[a][2]).

Here, since the net estate is less than $150,000, the petitioner's elective share is $50,000. Each testamentary substitute must make a pro rata contribution to satisfy the elective share (EPTL 5-1.1-A[c][2]). Accordingly, the petitioner is entitled to the entry of a decree directing the following: (1) HSB Bank, or the decedent's daughter in the event that the funds from the account have been withdrawn, to pay the sum of $33,020 to the petitioner (66.04% of $50,000) and NYCERS to pay the sum of $16,980 to the petitioner (33.96% of $50,000) and the balance of the death benefit in equal shares to the three children. The decree to be entered hereon shall be settled upon all three children, NYCERS and HSBC Bank.

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SURROGATE