§ 5-1.4 — Revocatory effect of divorce, annulment or declaration of

New York § 5-1.4

• Jurisdiction: New York
• Law EPT: Estates, Powers & Trusts
• Part 1: Rights of Surviving Spouse
• Art. 5: Family Rights

Text

§ 5-1.4 Revocatory effect of divorce, annulment or declaration of\nnullity, or dissolution of marriage on disposition, appointment,\nprovision, or nomination regarding a former spouse\n (a) Except as provided by the express terms of a governing instrument,\na divorce (including a judicial separation as defined in subparagraph\n(f)(2)) or annulment of a marriage revokes any revocable (1) disposition\nor appointment of property made by a divorced individual to, or for the\nbenefit of, the former spouse, including, but not limited to, a\ndisposition or appointment by will, by security registration in\nbeneficiary form (TOD), by beneficiary designation in a life insurance\npolicy or (to the extent permitted by law) in a pension or retirement\nbenefits plan, or by revocable trust, including a bank account in trust\nform, (2) provision conferring a power of appointment or power of\ndisposition on the former spouse, and (3) nomination of the former\nspouse to serve in any fiduciary or representative capacity, including\nas a personal representative, executor, trustee, conservator, guardian,\nagent, or attorney-in-fact.\n (b)(1) Provisions of a governing instrument are given effect as if the\nformer spouse had predeceased the divorced individual as of the time of\nthe revocation.\n (2) A disposition, appointment, provision, or nomination revoked\nsolely by this section shall be revived by the divorced individual's\nremarriage to the former spouse.\n (c) Except as provided by the express terms of a governing instrument,\na divorce (including a judicial separation as defined in subparagraph\n(f)(2)) or annulment of a marriage severs the interests of the divorced\nindividual and the former spouse in property held by them at the time of\nthe divorce or annulment as joint tenants with the right of\nsurvivorship, transforming their interests into interests as tenants in\ncommon.\n (d)(1) A payor or other third party is not liable for having made a\npayment or transferred an item of property or any other benefit to a\nbeneficiary (including a former spouse) designated in a governing\ninstrument affected by a divorce, annulment, or remarriage, or for\nhaving taken any other action in good faith reliance on the validity of\nthe governing instrument, before the payor or other third party received\nwritten notice of the divorce, annulment, or remarriage.\n (2) Written notice of a divorce, annulment, or remarriage under\nsubparagraph (1) must be mailed to the payor's or other third party's\nmain office or home by registered or certified mail, return receipt\nrequested, or served upon the payor or other third party in the same\nmanner as a summons in a civil action and may be filed with the\nsecretary of state if real property or a cooperative apartment is\naffected. Upon receipt of written notice of the divorce, annulment, or\nremarriage, a payor or other third party may pay any amount owed or\ntransfer or deposit any item of property held by it or with the court\nhaving jurisdiction of the probate proceedings relating to the\ndecedent's estate or, if no proceedings have been commenced, to or with\nthe court having jurisdiction over the divorce, the real property or\ncooperative apartment, securities, bank accounts or other assets\naffected by the divorce or annulment under this section. The court shall\nhold the funds or item of property and, upon its determination under\nthis section, shall order disbursement or transfer in accordance with\nthe determination. Payments, transfers, or deposits made to or with the\ncourt discharge the payor or other third party from all claims for the\nvalue of amounts paid to or items of property transferred to or\ndeposited with the court.\n (e) A person who purchases property from a former spouse or any other\nperson for value and without notice, or who receives from a former\nspouse or any other person, a payment or other item of property in\npartial or full satisfaction of a legally enforceable obligation, is\nneither obligated under this section to return the payment, item of\nproperty or benefit, nor is liable under this section for the amount of\nthe payment or the value of the item of property or benefit. But a\nformer spouse or other person who, not for value, received a payment,\nitem of property or any other benefit to which that person is not\nentitled under this section is obligated to return the payment, item of\nproperty or benefit, with interest thereon, to the person who is\nentitled to it under this section.\n (f) For purposes of this section, the following terms shall have the\nfollowing meaning and effect:\n (1) "Disposition or appointment of property" includes a transfer of an\nitem of property or any other benefit to a beneficiary designated in a\ngoverning instrument.\n (2) "Divorce or annulment" means a final decree or judgment of divorce\nor annulment, or a final decree, judgment or order declaring the nullity\nof a marriage or dissolving such marriage on the ground of absence,\nrecognized as valid under the law of this state, or a "judicial\nseparation," which means a final decree or judgment of separation,\nrecognized as valid under the law of this state, which was rendered\nagainst the spouse.\n (3) "Divorced individual" includes an individual whose marriage has\nbeen annulled or subjected to a judicial separation.\n (4) "Former spouse" means a person whose marriage to the divorced\nindividual has been the subject of a divorce, annulment, or judicial\nseparation.\n (5) "Governing instrument" includes, but is not limited to, a will,\ntestamentary instrument, trust agreement (including, but not limited to\na totten trust account under 7-5.1(d)), insurance policy, thrift,\nsavings, retirement, pension, deferred compensation, death benefit,\nstock bonus or profit-sharing plan, account, arrangement, system or\ntrust, agreement with a bank, brokerage firm or investment company,\nregistration of securities in beneficiary form pursuant to part 4 of\narticle 13 of this chapter, a court order, or a contract relating to the\ndivision of property made between the divorced individuals before or\nafter the marriage, divorce, or annulment.\n (6) "Revocable," with respect to a disposition, appointment,\nprovision, or nomination, means one under which the divorced individual,\nat the time of the divorce or annulment, was empowered, by law or under\ngoverning instrument, either alone or in conjunction with any other\nperson who does not have a substantial adverse interest, to cancel the\ndesignation in favor of the former spouse, whether or not the divorced\nindividual was then empowered to designate himself or herself in place\nof the former spouse and whether or not the divorced individual then had\nthe capacity to exercise the power.\n