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In Re McCourt, (bankr.s.d.n.y. 1981), 12 B.R. 587, 589-90 (Bankr. S.D.N.Y. 1981)

Until the debtor exercises his personal statutory right to the election, no rights in his deceased wife's property are ascribable to the debtor. That the interest in question is solely of a personal nature and not a property right is made clear by the New York Surrogate's Court in In re Herter's Estate, 193 Misc. 602, 607, 83 N.Y.S.2d 36, 41, affirmed 274 App. Div. 979, 84 N.Y.S.2d 913, affirmed 300 N.Y. 532, 89 N.E.2d 252 (1948), where it said with respect to the statutory right of election:

"The act grants no property right in esse, but only a property right in posse which springs into existence only if the statutory right is exercised under the conditions which create the right only as of the time of the exercise of the election."

Manifestly, the debtor has no rights in the property in his deceased wife's estate unless and until he exercises his personal right of election.



it goes on to read....

In Re McCourt, (bankr.s.d.n.y. 1981), 12 B.R. 587, 590 (Bankr. S.D.N.Y. 1981)

(“Similarly, in Estate of Vladimir Charkowsky, 89 Misc.2d 623, 624, 392 N.Y.S.2d 368, 369 (1977), the court said:

"The right of election against the will is personal to the surviving spouse, except that an election may be made by the guardian of an infant or the committee of an incompetent, if either fiduciary were authorized by the court which had jurisdiction over him."

Hence, the courts have recognized that a personal power conferred by statute, such as the surviving spouse's right to elect against a will, requires personal action by the benefitted individual for its exercise,”)

Hence, the courts have recognized that a personal power conferred by statute,..., requires personal action by the benefitted individual for its exercise....