Relates to the revocatory effect of divorce

Present section 5-1.4 of the EPTL was added in 2008, on the basis of a study and recommendation of our Advisory Committee and the T&E Section of the New York State Bar Association. The primary purpose of that 2008 legislation was to extend the application of former § 5-1.4 to non-probate transfers.

The form of the 2008 legislation was adopted substantially verbatim from § 2-804 of the 1990 Uniform Probate Code ("UPC"). However, one of the aspects of UPC § 2-804 which was not adopted in 2008 (nor called for either by our Committee or the T&E Section) was the provision that expanded the revocatory effect of the divorce beyond the divorced spouse of the decedent to include the "relatives" of the divorced spouse of the decedent.

As a result of the recent Fourth Department decision in Estate of Lewis, 114 A D.3d 203 (2014), our Advisory Committee has considered the issue de novo, and now recommends addition of a new EPTL 5-1.4 (g) adopting a rebuttable presumption extending the revocatory effect of divorce to "relatives" of the decedent's former spouse, unless there is substantial evidence of contrary intent.{1}

Our Advisory Committee considered and rejected adoption of the highlighted provision of UPC § 2-804 for the following reasons. Under UPC § 2-804 divorce revokes dispositions to both former spouses and relatives of former spouses "(e)xcept as provided by the express terms of a governing instrument, a court order, or a contract relating to the division of the marital estate made between the divorced individuals before or after the marriage, divorce, or annulment, the divorce or annulment of a marriage." Under our Advisory Committee's recommendation, built into this measure, this approach would be retained for revocation of dispositions to divorced spouses but the presumed revocatory effect on dispositions to relatives, on the other hand, could be rebutted by any substantial evidence, including evidence which would be inadmissible by virtue of CPLR 4519, provided that such evidence is supported by other proof.

Our Advisory Committee's view is that this approach reflects the probable intent of most decedents in connection with dispositions to "relatives" of divorced spouses, but leaves room for the varieties of human experience which might include a contrary intention which was not memorialized in the decedent's will executed prior to the divorce, such as, for example, a continuing relationship with a step child. The Committee believes that such probable intent is more problematic than the probable intention of such decedents with respect to dispositions to divorced spouses themselves.

It should be noted that our Advisory Committee discussed at some length whether evidence admissible on the issue of revocatory intent should include evidence otherwise disqualified under CPLR 4519. Its recommendation to permit such evidence is based on its judgment that (a) the issue of dispositions to relatives of former spouses arises infrequently, (2) that in such infrequent instances excluding CPLR 4519 evidence would, more likely than not, result in a disposition not in harmony with the decedent's probable intent, and (3) there is a sufficient safeguard against fraud in providing that otherwise excludible CPLR 4519 evidence must be supported by other evidence before there can be "substantial evidence" of contrary intent.

This measure, which would have no fiscal impact, would take effect immediately.

Legislative History: None. New proposal.

{1} The measure would allow CPLR 4519 evidence but would provide that such evidence would have to be supported by other evidence.