Divorce and Your Estate Plan in New York: EPTL § 5-1.4

When a New York divorce becomes final, a single statute quietly rewrites part of your estate plan. Section 5-1.4 of the Estates, Powers and Trusts Law (EPTL) revokes most revocable gifts to a former spouse and most nominations of that spouse as executor, trustee or agent, unless a governing instrument expressly says otherwise. The statute does a lot of work, but it does not finish the job. Below we walk through what EPTL § 5-1.4 changes on its own, what it leaves untouched, and why we still tell every divorced client to update their documents.

What does a divorce revoke automatically under EPTL § 5-1.4?

A final divorce or annulment revokes three categories of revocable provisions in favor of a former spouse: gifts of property, powers of appointment or disposition, and fiduciary nominations. Here is the operative language from subparagraph (a):

In practical terms, the statute reaches the documents most people actually own:

• Wills. A bequest to your former spouse is revoked, and so is a clause naming that spouse as executor.
• Revocable trusts. Gifts to the former spouse and the former spouse's appointment as trustee are revoked. If you are weighing trust options generally, see our comparison of revocable and irrevocable trusts in New York.
• Payable-on-death style assets. The statute names securities registered in beneficiary form (TOD), life insurance beneficiary designations, and "a bank account in trust form".
• Retirement plans, but only "to the extent permitted by law". That qualifier is in the statute itself, so a retirement account is the asset where you should never rely on automatic revocation.
• Agents and attorneys-in-fact. A nomination of the former spouse as "agent, or attorney-in-fact" is revoked along with executor, trustee, conservator and guardian nominations.

When does the revocation take effect?

Revocation happens on a final decree or judgment, not when someone files for divorce or moves out. The statute's definition of "divorce or annulment" in subparagraph (f)(2) is built around finality:

Two consequences follow. First, while a divorce case is pending, your spouse is still your spouse for purposes of this section, and every beneficiary designation and nomination in that spouse's favor stays in place. If you die before the judgment is final, EPTL § 5-1.4 does nothing for you. Second, a judicial separation counts only if it is a final decree or judgment of separation "which was rendered against the spouse". An informal separation, or living apart, is not on the list.

If you want different documents in place during the case, coordinate any change with your matrimonial attorney first, because the divorce proceeding may limit what you can change while it is pending.

How does the statute treat the former spouse after revocation?

The plan reads as if your former spouse died before you. Subparagraph (b)(1) provides that "[p]rovisions of a governing instrument are given effect as if the former spouse had predeceased the divorced individual as of the time of the revocation."

That rule only works well if your documents already say what happens when the first-named person is gone. A will with a contingent beneficiary passes the gift to that contingent beneficiary. A will or beneficiary form with no backup can leave the asset without a named recipient, which may push it into your probate estate. Our guide to New York probate and estate administration explains what that process involves.

One more rule surprises people. Under subparagraph (b)(2), "[a] disposition, appointment, provision, or nomination revoked solely by this section shall be revived by the divorced individual's remarriage to the former spouse." Remarry your former spouse, and the old provisions come back to life.

What happens to property we owned jointly?

Joint ownership with a right of survivorship is converted into a tenancy in common. Subparagraph (c) states that a divorce or annulment "severs the interests of the divorced individual and the former spouse in property held by them at the time of the divorce or annulment as joint tenants with the right of survivorship, transforming their interests into interests as tenants in common."

The difference matters at death. With a right of survivorship, the surviving owner takes the whole property. As tenants in common, each owner's share passes under that owner's own will or, without a will, to that owner's heirs. Our article on dying without a will in New York covers who inherits in that situation. Like subparagraph (a), subparagraph (c) begins with "[e]xcept as provided by the express terms of a governing instrument", so a written agreement can keep the survivorship feature in place.

What is the "express terms of a governing instrument" exception?

The automatic rules yield whenever a governing instrument expressly provides otherwise. Both subparagraph (a) and subparagraph (c) open with the words "[e]xcept as provided by the express terms of a governing instrument".

"Governing instrument" is defined broadly in subparagraph (f)(5). It "includes, but is not limited to, a will, testamentary instrument, trust agreement", insurance policies, retirement and pension plans, agreements with a bank or brokerage firm, "a court order, or a contract relating to the division of property made between the divorced individuals before or after the marriage, divorce, or annulment."

That definition is why the divorce papers themselves can override the statute. If your settlement agreement or judgment expressly requires you to keep your former spouse as beneficiary of a life insurance policy, for example, that provision can fall within the exception. Read your agreement and judgment alongside your estate plan, not separately from it.

What does EPTL § 5-1.4 not change?

The statute only revokes provisions that are revocable and that favor the former spouse. Everything else stays exactly as you left it.

• Irrevocable arrangements. Subparagraph (f)(6) defines "revocable" as a provision the divorced individual, at the time of the divorce or annulment, "was empowered, by law or under governing instrument, either alone or in conjunction with any other person who does not have a substantial adverse interest, to cancel". A gift you could not cancel on your own, such as one in an irrevocable trust, is outside the statute.
• Gifts to your former spouse's relatives. Subparagraph (a) reaches dispositions "to, or for the benefit of, the former spouse". It does not mention stepchildren, in-laws or other relatives of the former spouse, so do not assume those gifts were revoked.
• Payments made before notice. Subparagraph (d)(1) protects a payor or other third party who pays a named beneficiary in good faith "before the payor or other third party received written notice of the divorce, annulment, or remarriage." Recovery may then become a fight with the person who was paid.
• Your new choices. Revocation removes a name. It never adds the person you actually want to inherit, serve as executor or act as your agent.

How do you give a bank or insurer notice of the divorce?

Notice must be in writing and delivered in one of the ways the statute names. Subparagraph (d)(2) requires that written notice "must be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action". Where real property or a cooperative apartment is affected, the notice "may be filed with the secretary of state".

After receiving notice, a payor may deposit the funds or property with the court handling the probate proceedings or, if none has been commenced, with the court that has jurisdiction over the divorce or the affected asset. Payments made to the court discharge the payor "from all claims for the value of amounts paid to or items of property transferred to or deposited with the court."

Subparagraph (e) addresses money that already went to the wrong person. A former spouse who, "not for value", received a payment or property "to which that person is not entitled under this section is obligated to return the payment, item of property or benefit, with interest thereon, to the person who is entitled to it under this section." A person who purchased property "for value and without notice", however, is not obligated under this section to return it.

Why should you still update your estate plan after a divorce?

Because the statute is a safety net, not a plan. In our practice, the post-divorce review covers these steps:

1. Sign a new will naming the beneficiaries and executor you want now, with contingent beneficiaries for every gift.
2. Amend or restate your revocable trust, replace any trustee who was your former spouse, and confirm the right assets are titled in the trust. Our trust funding guide explains the retitling step.
3. File new beneficiary designations directly with each insurer, plan administrator, bank and brokerage firm, including retirement accounts the statute covers only "to the extent permitted by law".
4. Execute a new power of attorney naming a new agent, and notify institutions that relied on the old one.
5. Review deeds for property formerly held with a right of survivorship, since subparagraph (c) turns it into a tenancy in common.
6. Compare the plan with your divorce agreement and judgment so that any obligation to keep your former spouse as a beneficiary is honored and nothing beyond it survives.

Each new document states your current wishes in your own words, which removes the need for anyone to argue later about what EPTL § 5-1.4 did or did not revoke.

Talk with us about updating your plan after a divorce

If your divorce is final, or close to it, we can review your will, trust, beneficiary forms and power of attorney against EPTL § 5-1.4 and your divorce papers. Estate Law New York is located on the 17th Floor, 299 Broadway, New York, NY 10007. Schedule a free consultation with Managing Attorney Alan Vaitzman, Esq.

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Disclaimer: This article is for informational purposes only and does not constitute legal or tax advice. No attorney-client relationship is formed by reading this publication. Prior results do not guarantee a similar outcome. Reviewed by Alan Vaitzman, Esq. — Managing Attorney at Estate Law New York. Working in estate law since 2017. J.D., New York Law School (2021); B.A. in Psychology, Brooklyn College (2016). Admitted to practice in New York (Reg. No. 5989199), New Jersey, and Florida (Bar No. 1040681). Office: 299 Broadway, 17th Floor, New York, NY 10007.