Divorce And The New York Estate Plan

If you go through a divorce in New York, the Estates, Powers, and Trusts Law 5-1.4 has an automatic revocatory effect on provisions for the benefit of your former spouse in your will, beneficiary designations and other estate plan documents.

New York EPTL 5-1.4 Automatically Revokes Certain Designations

EPTL 5-1.4 is titled “Revocatory Effect of divorce, annulment, or declaration of nullity, or dissolution of marriage on disposition, appointment, provision, or nomination regarding a former spouse.”  EPTL 5-1.4 addresses what happens automatically to bequests and designations to your former spouse and is effective from the moment of the divorce.

Unless the governing document expressly says otherwise, a divorce, including a judicial separation, or annulment of a marriage in New York revokes any revocable disposition or appointment of property made to the former spouse, including, but not limited to:

  • a disposition or appointment by will,
  • a disposition by security registration in beneficiary form (TOD),
  • a disposition by beneficiary designation in a life insurance policy or (to the extent permitted by law) in a pension or retirement benefits plan,
  • a disposition or by revocable trust, including a bank account in trust form
  • Provision conferring a power of appointment or power of disposition on the former spouse;  and,
  • Nomination of the former spouse to serve in any fiduciary or representative capacity, including as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact.

Basically, under EPTL 5-1.4, the former spouse is removed from the estate planning documents, both as a beneficiary and as a fiduciary, and automatically removed from any beneficiary designations on accounts.  This does not mean that the former spouse’s name automatically disappears, it simply means that for purposes of your assets, your former spouse is treated as having predeceased you.

A judicial separation is defined in EPTL 5-1.4 and means “a final decree or judgment of separation, recognized as valid under the law of this state, which was rendered against the spouse.”

It is also important to note that EPTL 5-1.4 does not apply to irrevocable beneficiary designations, such as in an irrevocable trust.

What Happens To The Estate Plan In New York If You Remarry Your Former Spouse?

If you remarry your former spouse, then any disposition, appointment, provision, or nomination is automatically revived by the remarriage if the sole reason it was revoked was under EPTL 5-1.4.  Said another way, if you proactively changed your estate planning and beneficiary designations after your divorce, EPTL 5-1.4 will not have the effect of putting your spouse back into your estate planning, although your spouse will still have surviving spouse rights under New York law.

If  you did not do anything to change your estate plan after your New York divorce (meaning EPTL 5-1.4 is the reason bequests in favor of your former spouse), and then remarry, any provision for your former spouse turned current spouse would be revived.

What Happens To Joint Property Upon Divorce In New York?

Regarding jointly owned property, New York EPTL 5-1.4 transforms joint property interests held as joint tenants with right of survivorship to interests as tenants in common and states:

Except as provided by the express terms of a governing instrument, a divorce (including a judicial separation as defined in subparagraph (f)(2)) or annulment of a marriage severs the interests of the divorced individual and the former spouse in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming their interests into interests as tenants in common.

Should You Change Your Estate Plan After Divorce?

Yes, you should not simply rely on New York law to excise your former spouse from your estate planning, because it can create problems for your beneficiaries.  For example, if you only had your former spouse listed as a beneficiary on your bank accounts with no contingent beneficiaries, your assets would have to go through estate administration before passing to your heirs.  If you designate beneficiaries on your accounts, then the assets will pass directly to them without the need for probate.

It is always a good idea to revisit your estate planning during and after a major life event, such as divorce, judicial separation, or annulment.  Indeed, if you die in the middle of a divorce or separation proceeding, EPTL 5-1.4 will not come into play, and your spouse will still benefit from your estate plan.

Additionally, if your New York estate plan includes bequests or appointments in favor of relatives of your former spouse, these provisions are not automatically revoked and would need to be affirmatively changed if so desired.

Does A Divorce In New York Invalidate A Will?

No.  A divorce in New York will not invalidate the entire will.  Only the provisions in favor of the former spouse will be revoked.  However, if you only have your spouse listed as a beneficiary, or if your spouse is nominated to serve as personal representative, your will could end up not really doing anything upon your death.

Find Your Probate Star

Lawyer Locator Front End

Brooklyn

Inna Fershteyn

Nassau County

Cyrus Shaw

Erie County

Ruth P. George

Westchester County

Anthony Nigro

Queens

Rudolf Karvay

Suffolk County

Marc Weissman

Rockland County

Ari J. Zaltz

Find Your New York Probate Star

Brooklyn

Inna Fershteyn

Westchester County

Anthony Nigro

Nassau County

Cyrus Shaw

Erie County

Ruth P. George

Queens

Rudolf Karvay

Suffolk County

Marc Weissman

Rockland County

Ari J. Zaltz