Estate, Powers and Trusts, § 5-1.4: Revocatory Effect of Divorce, Annulment or Declaration of Nullity, or Dissolution of Marriage on Disposition, Appointment or Other Provision in Will to Former Spous

New York's Estate, Powers and Trusts law includes rules related to the rights of a surviving spouse. Generally speaking, a surviving spouse cannot be completely disinherited. In other words, if you are still married when you pass away, you cannot prevent your surviving spouse from inheriting a portion of your estate by drafting a will that leaves your estate to others. However, there are some exceptions to this rule. One such exception relates to divorce, annulment or nullification of the marriage. Under New York's Estate, Powers and Trusts law section 5-1.4, a divorce will nullify a testamentary disposition of property to the former spouse. Similarly, by operation of law, a former spouse will not be eligible to inherit property from a former spouse under New York’s rules if intestate succession. The rules of intestate succession apply when someone passes away intestate, meaning without have left a valid will. To learn more about estate planning and a spouse’s rights, contact a New York Estate Lawyer who understands the nuances of New York probate law and who will work closely with you to draft estate planning documents that will meet your needs.

1. Right of election by surviving spouse: Estates, Powers and Trust, section 5-1.1-A
2. Disqualification as surviving spouse: Estates, Powers and Trust, section 5-1.2
3. Revocatory effect of marriage after execution of will: Estates, Powers and Trust, section 5-1.3

New York law has specific provisions to protect surviving spouses from being disinherited. This means that regardless of what a will states, a surviving spouse will be entitled to at least a portion of a decease spouse’s estate. This also means that if the spouses divorce, if the marriage is annulled, or if the marriage is in some other way nullified, the former spouse will no longer be entitled to inherit from his or her former spouse.

For example, John and June each have wills that leave 100% of their property to each other. Five years after executing the wills, John and June divorce. However, neither person updates their will. June passes away. Based on June’s will, John should inherit 100% of June’s property. However, under New York law John will not inherit any of June’s property because the two have divorced.

The provisions of New York Estate, Powers and Trusts law section 5-1.4 also applies testamentary appointments. Thus, if a will names a spouse to be executor of his or her estate, a divorce would nullify that appointment.

1. If, after executing a will, the testator is divorced, his marriage is annulled or its nullity declared or such marriage is dissolved on the ground of absence, the divorce, annulment, declaration of nullity or dissolution revokes any disposition or appointment of property made by the will to the former spouse and any provision therein naming the former spouse as executor or trustee, unless the will expressly provides otherwise, and the provisions, dispositions and appointments made in such will shall take effect as if such former spouse had died immediately before such testator. If a provision, disposition or appointment is revoked solely by this section, it shall be revived by testator's remarriage to the former spouse.
2. The provisions of this section apply to the will of a testator who dies on or after its effective date, notwithstanding that the will was executed and the divorce, annulment, declaration of nullity or dissolution was procured prior thereto.
3. Except as provided expressly in the instrument, a registration in beneficiary form of any security by an owner on behalf of his or her spouse pursuant to part 4 of article 13 of this chapter is revoked at the dissolution of the marriage, its annulment or upon any declaration of its nullity. After revocation, the security belongs to the estate of the owner upon his or her death unless there is a contingent beneficiary or the owner establishes another subsequent and valid disposition of the security at death. If a registration is revoked solely by this section, it shall be revived by the owner's remarriage to the former spouse.

Because family relationships can be complex and no two relationships are the same, it is important that you have duly executed estate plan that takes into account your wishes and your family’s needs. In addition, it is critical that your estate planning documents are consistent with the complexities of New York law. The staff at Stephen Bilkis and Associates has years of experience drafting estate plans for clients as well as trusts, powers of attorney, advanced health care directives and other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan. We serve individuals throughout the following locations: