Marriage is on everyone's mind with the recent ruling of the Supreme Court concerning same-sex marriage. Yet, two decisions in the past month from the surrogate's court have explored the other side of marriage—divorce and its potential revocatory effect on an estate plan. This article reviews several decisions that provide guidance for matrimonial and estate practitioners when advising divorced and divorcing clients.

EPTL 5-1.4

Pursuant to New York Estates, Powers and Trusts Law (EPTL) §5-1.4, unless the will expressly states otherwise, divorce, judicial separation, or annulment of a marriage revokes all dispositions or appointments of property made by the divorced spouse to a former spouse. The former spouse is treated as having predeceased the testator. This means any bequests to the former spouse, the nomination of the former spouse as executor or trustee and any appointments of property in his or her favor under a power of appointment are revoked.¹

When the statute was enacted in 1966, it represented a significant change from prior public policy and case precedent. Previously, courts held that the termination of a marriage did not revoke gifts to the former spouse in a decedent's will. New York courts consistently held that there could be no implied revocation of a will. Decedent's Estate Law §34 provided the only methods through which a will or a bequest could be revoked. Matter of Parker, 100 Misc. 219 (Surr. Ct. New York Co. 1917). Thus, any other act (like divorce) did not revoke any provisions to a will regardless of the changed marital status. Matter of Simpson's Estate, 155 Misc. 866 (Surr. Ct. Kings Co. 1935) (finding a bequest to “my wife, Louise Ryan Simpson” was descriptive and did not create a condition that Louise must still be married to the testator at his death in order to take under his will); Matter of Wainwright, 82 NYS2d 345 (Surr. Ct. Westchester Co. 1948) (gift to “wife” meant the wife at the time he made his will while gift to “widow” meant surviving spouse).