Revocatory Effect of Divorce on Estate Planning Documents

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Revocatory Effect of Divorce on Estate Planning Documents: EPTL 5-1.4 and Recovering Assets Under SCPA 2104

Divorce doesn’t just end a marriage—it can have sweeping effects on your estate plan. In New York, EPTL § 5-1.4 automatically revokes certain provisions in estate planning documents that benefit a former spouse. Yet, even with this safeguard, errors and oversights sometimes lead to assets passing to an ex-spouse through outdated beneficiary designations or joint accounts. When that happens, SCPA § 2104 proceedings may be necessary to recover those assets for the proper estate beneficiaries.

Understanding EPTL 5-1.4: Revocatory Effect of Divorce on Estate Planning Documents

EPTL 5-1.4—the “revocatory effect of divorce” statute—provides that once a divorce, annulment, or judicial separation becomes final, any disposition, appointment, or nomination of a former spouse in a will, trust, power of attorney, or beneficiary designation is automatically revoked. The law treats the ex-spouse as though they predeceased the testator or grantor.

This automatic revocation typically applies to:

  • Wills and codicils naming the ex-spouse as a beneficiary or executor
  • Revocable trusts granting interests or fiduciary appointments to the ex-spouse
  • Beneficiary designations on life insurance, retirement plans, and payable-on-death accounts
  • Powers of attorney and health care proxies designating the former spouse as agent

The statute aims to prevent unintentional windfalls to former spouses who are no longer part of the testator’s life.

When Assets Still Pass to an Ex-Spouse Despite EPTL 5-1.4

Despite the clear intent of EPTL 5-1.4, certain non-probate assets—like life insurance policies, IRAs, 401(k)s, or brokerage accounts with designated beneficiaries—can slip through the cracks. Common reasons include:

  • The account custodian or insurance company was not informed of the divorce.
  • The plan administrator followed federal law (ERISA), which sometimes preempts state statutes.
  • The decedent never updated the designation after divorce.
  • The financial institution processed payments before the estate could intervene.

When this happens, the estate—or the rightful beneficiaries—may need to commence a proceeding in Surrogate’s Court to recover those assets.

Revocatory Effect of Divorce on Estate Planning Documents – Recovering Wrongly Distributed Assets: SCPA § 2104 Proceedings

Under SCPA § 2104, the fiduciary of an estate (such as an executor or administrator) can file a petition for discovery and turnover. This proceeding is to recover property or funds that belong to the estate but are held by another person.

In cases involving the revocatory effect of divorce:

  • The estate may seek to recover assets distributed to a former spouse under a revoked beneficiary designation.
  • The petitioner can assert that, under EPTL 5-1.4, the former spouse was legally deemed to have predeceased the decedent, making the transfer invalid.
  • The Surrogate’s Court can then order the return of those funds to the estate or rightful beneficiaries.

Such proceedings are often fact-intensive, requiring proof of divorce, the existence of the beneficiary designation, and the legal effect of the statute on that asset.

How to Protect Your Estate and Avoid Litigation and Revocatory Effect of Divorce on Estate Planning Documents

While SCPA 2104 provides a remedy, prevention is far more efficient. After a divorce, every individual should take immediate steps to review and update their estate plan:

  1. Execute a new will and revocable trust that reflect your current wishes.
  2. Update all beneficiary designations on insurance, retirement, and investment accounts.
  3. Revoke and reissue powers of attorney and health care proxies.
  4. Remove joint ownership or survivorship provisions with the ex-spouse.
  5. Consult with an experienced trusts and estates attorney to ensure no assets remain vulnerable to outdated designations.

These proactive measures reduce the risk of disputes and costly turnover proceedings later.

Navigating the intersection of family law, estate planning, and Surrogate’s Court practice requires a deep understanding of how New York statutes interact. A seasoned trusts and estates attorney can:

  • Interpret and apply EPTL 5-1.4 to your specific estate plan;
  • File or defend SCPA § 2104 proceedings when assets are wrongly distributed; and
  • Coordinate with financial institutions to ensure compliance and recovery.

At RK Law NY, we represent executors, administrators, and family members in Surrogate’s Court disputes involving post-divorce estate issues, including the recovery of assets improperly paid to former spouses.

Frequently Asked Questions (FAQs) about Revocatory Effect of Divorce on Estate Planning Documents

What happens to my will after divorce in New York?

Under EPTL 5-1.4, all provisions benefiting your former spouse—including gifts and fiduciary appointments—are automatically revoked once your divorce is final. Your ex is treated as though they predeceased you.

Does EPTL 5-1.4 apply to beneficiary designations on life insurance or retirement accounts?

Yes, it generally applies to non-probate assets like life insurance policies, IRAs, and POD accounts, unless federal law (like ERISA) governs the plan or the designation was reaffirmed after divorce.

What if a former spouse already received an asset after the decedent’s death?

The estate can bring a turnover proceeding under SCPA § 2104 to recover the funds or property. The Surrogate’s Court can determine ownership and compel the ex-spouse to return the asset to the estate.

Can a divorce agreement override EPTL 5-1.4?

Yes. A separation agreement or divorce decree can specifically preserve certain beneficiary designations—such as requiring life insurance for child support or maintenance—if the language is clear and intentional.

How soon after divorce should I update my estate plan?

Immediately. While EPTL 5-1.4 offers protection, it’s not comprehensive. Updating your will, trust, and designations as soon as your divorce is final ensures your assets pass according to your current wishes.

What if the ex-spouse refuses to return the asset?

Your estate’s fiduciary can file an SCPA § 2104 petition in Surrogate’s Court to compel turnover. The court has authority to order repayment, with interest, to the estate.

Who can bring an SCPA § 2104 proceeding?

Typically, the executor or administrator of the estate brings the proceeding. However, in certain cases, a beneficiary or interested party may petition the court to compel the fiduciary to act.

Key Takeaways on Revocatory Effect of Divorce on Estate Planning Documents

Divorce changes everything—including your estate plan. While EPTL 5-1.4 automatically revokes gifts and appointments to an ex-spouse, outdated beneficiary designations can still cause costly errors. If that happens, SCPA § 2104 offers a clear legal pathway to reclaim those assets for the estate.

The best strategy is proactive: review, update, and reaffirm your estate planning documents after every major life event. And if a problem arises, an experienced New York estate litigation attorney can help enforce your rights and protect your loved ones’ inheritance.

For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:

Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com

Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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