Doctrine of Revocation: Estate planning and the Rules to Spousal Inheritance Post-divorce in New York

At the turn of the 21st century, divorce or annulment of a marriage did not automatically revoke any revocable disposition or appointment of property from an ex-spouse at time of a decedent’s death in New York.  Since 2008, with the amendment of the. Existing Estates, Powers and Trusts Law, EPTL 5-1.4, estate law rules to divorce or annulment revocation of inheritance applies to any revocable disposition or appointment of property assigned a former Spouse as a designated beneficiary. New York Law EPTL 5-1.4 revokes any nomination of an ex-spouse as trust fiduciary, executor, agent, guardian, representative, trustee, or attorney-in-fact. Under the prior divorce and annulment revocation rule, the legal termination of a marriage agreement did not automatically revoke an ex-spouse’s power of attorney, or most revocable dispositions (“testamentary substitutes”), including joint tenancies (i.e. joint banking accounts), lifetime revocable trusts, or insurance policies (IN RE: The Estate of Joseph SUGG, Deceased. No. 2013–5055/B, Decided: June 29, 2015).

Amend, Restate or Execute a New Will?

When a couple divorces, changes to a will must be effectuated to an estate. Amendment, restatement, or execution of a new will is required under current New York estate law. Estate planning documents can be changed with the assistance of a licensed attorney experienced in matters of trust document modification and probate litigation. A client undergoing divorce is advised to review existing estate planning documentation at the commencement of a divorce, and at time of finalization. Estate law rules to entitlements provide that a soon to become ex-spouse will automatically lose named beneficiary status in a will or revocable trust. In matters where there is a judicial separation, annulment or final decree of divorce in process, revocation occurs only at the end of those proceedings, regardless of couple or court determined outcome.

Entitlement or Exception?

In a case where a will has been changed, a surviving spouse retains the right to Elective Share during the pendency of the divorce proceeding. Where there is no will, rules of intestacy apply to proportional distribution of estate assets. Surviving spouses are not disqualified from a decedent’s assets under rules of intestacy at the time a divorce proceeding begins. Intestate succession of assets to a spouse will cease, however, immediately at the time a divorce is finalized. A former spouse’s entitlements to benefits are not automatically revoked as result of a divorce. Assets distributed from a trust previously commingled with marital assets while a couple was married are common focus of probate litigation where pre-nuptial agreement exists. Enforceability of revocation may also be affected by rules of the jurisdiction where an ex-spouse or their children reside.

Contact an Estate Law Attorney

Divorce is a complex legal matter that can result in revocation of a former spouse’s rights to valuable trust assets. A licensed attorney specializing in estate law can advise a client if a new will must be executed, or if an amendment or restatement of trust documentation is an adequate modification to ensure equitable distribution of marital assets post-divorce. Ettinger Law Firm is a licensed attorney practice providing estate planning and probate litigation services. Contact Ettinger Law Firm in New York for consultation about a divorce-related estate law matter.

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