EPTL 5-1.4: How Divorce Revokes Bequests to an Ex-Spouse

Most people who divorce never get around to rewriting their will, changing the beneficiary on their life insurance, or retitling accounts they once shared with their former spouse. New York law anticipates this. Under Estates, Powers and Trusts Law (EPTL) 5-1.4, a final divorce automatically revokes most revocable transfers and appointments a person made in favor of the spouse before the divorce. The law treats the former spouse as if he or she died before the person who made the will or designation — so the gift fails, the fiduciary nomination fails, and the property passes as though the ex-spouse were not there.

The statute is powerful, but it has sharp edges. It applies only to a final divorce or annulment, only to revocable dispositions, and only to the former spouse — not to the former spouse's children or relatives. It can also be overridden by the express terms of the document, and federal law can displace it for certain employer-sponsored retirement plans. This page explains what EPTL 5-1.4 covers, how the revoked property is redistributed, how the issue is handled in Surrogate's Court, and the pitfalls that generate litigation.

What EPTL 5-1.4 Says in Plain Language

EPTL 5-1.4(a) provides that, except where the governing instrument expressly says otherwise, a divorce or annulment revokes any revocable:

• Disposition or appointment of property made by the divorced individual to, or for the benefit of, the former spouse — EPTL 5-1.4(a)(1). This includes gifts under a will, transfer-on-death (TOD) security registrations, beneficiary designations on life insurance policies and (to the extent permitted by law) pension or retirement plans, revocable lifetime trusts, and bank accounts in trust form (Totten trusts);
• Power of appointment conferred on the former spouse, whether general or special — EPTL 5-1.4(a)(2);
• Nomination of the former spouse to serve in a fiduciary or representative capacity — including as executor, trustee, guardian, agent, or attorney-in-fact — EPTL 5-1.4(a)(3).

In addition, EPTL 5-1.4(a)(4) severs joint ownership with survivorship rights: property the former spouses held as joint tenants with right of survivorship or as tenants by the entirety at the time of the divorce is converted into a tenancy in common. Each ex-spouse keeps his or her share, but neither automatically inherits the other's share at death.

Under EPTL 5-1.4(b), anything revoked by the statute is given effect as if the former spouse had predeceased the divorced individual as of the moment of the divorce. That legal fiction determines who takes the property instead.

Two definitional points matter. First, "divorce or annulment" means a final judgment of divorce, an annulment, a declaration of nullity, or a judicial dissolution of the marriage. A decree or agreement of separation does not count — separated spouses remain married for purposes of this statute. Second, the statute applies to governing instruments the divorced individual executed before the divorce. If someone names their ex-spouse as a beneficiary after the divorce is final, that designation is deliberate and fully enforceable.

Before the statute was rewritten in 2008, revocation on divorce applied essentially only to wills. The current version extends the rule to the full range of will substitutes — revocable trusts, Totten trusts, TOD registrations, and insurance and retirement beneficiary designations. In disputes involving older divorces, which version of the statute governs can itself be a litigated question, so anyone dealing with a pre-2008 divorce should have the timeline reviewed carefully.

The "Predeceased" Fiction: Where the Revoked Gift Goes

Because EPTL 5-1.4(b) treats the ex-spouse as having died first, the revoked gift does not simply vanish — it flows to the next taker under the instrument's own terms:

• A specific or general bequest to the ex-spouse falls into the residuary estate and passes to the residuary beneficiaries.
• If the ex-spouse was the residuary beneficiary, the residue passes to the alternate residuary beneficiaries named in the will. If there are none, the residue passes by intestacy under EPTL 4-1.1 to the decedent's distributees — typically children, or parents if there are no children.
• A life insurance or retirement designation naming the ex-spouse is paid to the contingent beneficiary; if none was named, the proceeds are paid according to the policy or plan's default rules, usually to the insured's estate.
• A revoked executor or trustee nomination is filled by the successor fiduciary named in the instrument. If no successor is named, the Surrogate's Court appoints an administrator c.t.a. under SCPA 1418.

Note that New York's anti-lapse statute, EPTL 3-3.3, does not save a gift to a former spouse. Anti-lapse protection applies only to gifts to the testator's issue and siblings, so the ex-spouse's children do not step into the ex-spouse's revoked gift by operation of anti-lapse.

Worked Examples

Example 1: Bequest under a will

David's 2015 will leaves $200,000 and his Brooklyn co-op to his wife Maria, with the residuary estate to his two children. David and Maria divorce in 2021; David dies in 2024 without updating the will. Under EPTL 5-1.4(a)(1) and (b), Maria is treated as having predeceased David. The $200,000 bequest and the co-op fall into the residuary estate and pass to the two children. The will is still valid and is still admitted to probate — only the provisions favoring Maria are struck.

Example 2: Life insurance designation

Susan owns a $500,000 term life policy naming her husband Robert as primary beneficiary and her sister as contingent beneficiary. Susan and Robert divorce in 2019; Susan dies in 2023 without changing the designation. EPTL 5-1.4(a)(1) revokes Robert's designation, and the insurer pays the $500,000 to the sister as contingent beneficiary. If Susan had named no contingent beneficiary, the proceeds would be payable to her estate and distributed under her will or, absent a will, by intestacy. The statute protects an insurer or other payor that pays out before receiving written notice of the divorce — so the family should notify the carrier of the divorce in writing immediately, or the money may go out the door to the wrong person and have to be chased in a recovery action.

Example 3: Jointly owned house

Michael and Karen own a house worth $800,000 as tenants by the entirety. They divorce but never retitle the deed. Under EPTL 5-1.4(a)(4), the divorce converts their ownership into a tenancy in common — each holds an undivided 50% interest worth $400,000, with no survivorship right. When Michael dies two years later, his 50% interest passes through his estate to his beneficiaries or distributees; Karen does not take the whole house by survivorship, though she keeps her own half. Untangling a marital home after divorce raises related financing issues as well — see our discussion of what happens when only one spouse is on the mortgage but both are on title in a divorce.

Example 4: Executor nomination

Elena's will names her husband Paul as executor and her brother as successor executor. After their divorce, Elena dies. Paul's nomination is revoked under EPTL 5-1.4(a)(3), and the brother petitions for letters testamentary as successor. If no successor had been named, an eligible residuary beneficiary could petition for letters of administration c.t.a. under SCPA 1418.

What EPTL 5-1.4 Does NOT Revoke

The exceptions are where most litigation arises. The statute does not revoke:

• Gifts to the ex-spouse's relatives. Revocation applies only to the former spouse. A bequest to a stepchild, or to the ex-spouse's siblings or parents, survives the divorce unless the will conditions it otherwise. Many testators are surprised that former in-laws remain beneficiaries.
• Irrevocable dispositions. The statute reaches only revocable transfers. An irrevocable trust for the ex-spouse's benefit, or an irrevocable beneficiary designation, is untouched by EPTL 5-1.4.
• Instruments that expressly say otherwise. If the will or designation states that the gift stands even in the event of divorce, the express terms control and the gift survives.
• Designations made after the divorce. Because the statute applies to instruments executed before the divorce, a person who re-executes a will or re-files a beneficiary form naming the ex-spouse after the judgment has made an effective, intentional gift.
• Certain federally regulated retirement plans. For employer-sponsored plans governed by federal ERISA law, federal preemption generally requires the plan administrator to pay the beneficiary named on the plan's records — even a former spouse — regardless of EPTL 5-1.4. The estate may in some circumstances pursue the proceeds from the ex-spouse afterward based on waivers in the divorce settlement, but the plan itself pays per the designation. This is the single most important reason to update retirement beneficiary forms immediately after divorce rather than relying on the statute.

Two related rules round out the picture. Revival: under EPTL 5-1.4(c), if the divorced couple remarries each other, the provisions revoked solely by the statute are revived. Health care proxies: under Public Health Law 2985, the appointment of a spouse as health care agent is revoked upon divorce or legal separation unless the proxy specifies otherwise — note that, unlike EPTL 5-1.4, the health care proxy rule is triggered by legal separation.

Timing Is Everything: Death During a Pending Divorce

EPTL 5-1.4 requires a final judgment entered before death. If a spouse dies while the divorce action is pending — even after trial, even after a settlement is signed but before the judgment is entered — the parties are still married. The divorce action generally abates at death, and the surviving spouse takes as a spouse: bequests stand, the executor nomination stands, and if the will disinherits the survivor, he or she can claim the elective share of the greater of $50,000 or one-third of the net estate under EPTL 5-1.1-A. A separation agreement may independently waive those rights by contract, but the statutory revocation itself never kicks in. Where the finality or validity of a foreign or contested divorce judgment is disputed, the Surrogate's Court must resolve marital status before distributing the estate.

How the Issue Is Handled in Surrogate's Court

There is no separate "EPTL 5-1.4 proceeding." The statute operates automatically, but it is applied within ordinary Surrogate's Court proceedings:

1. Probate petition. The nominated (successor) executor files a petition under SCPA 1402 with the will, death certificate, and filing fee. The petition lists the decedent's distributees; a former spouse is not a distributee. Where the will on its face names the ex-spouse, the petitioner should disclose the divorce and attach a certified copy of the judgment of divorce so the court can apply EPTL 5-1.4 and dispense with citation to the ex-spouse where appropriate. The will itself must still satisfy the execution formalities of EPTL 3-2.1 to be admitted.
2. Citation and jurisdiction. If there is any genuine question about whether the divorce was final, whether the instrument's express terms preserve the gift, or whether a foreign judgment is entitled to recognition, the ex-spouse should be cited under SCPA 1403 so the determination binds him or her. Skipping a necessary party invites a later challenge to the decree.
3. Construction or determination proceedings. Disputes over the statute's effect — for example, whether a designation was revocable, or whether a trust provision expressly survives divorce — can be resolved in a construction proceeding under SCPA 1420 or within the probate or accounting proceeding.
4. Discovery and turnover. If a former spouse has already collected insurance proceeds, drained a Totten trust account, or taken property that the statute redirected to the estate, the fiduciary can conduct discovery under SCPA 2103 and seek a turnover order under SCPA 2104 compelling return of the assets.
5. Successor fiduciary. Where the revoked nomination leaves no named successor, an interested party petitions for letters of administration c.t.a. under SCPA 1418, with priority generally following the beneficiaries of the residuary estate.

Deadlines and Practical Timing

• Notify payors in writing immediately. The statute shields insurers, banks, and other payors that pay the designated beneficiary before receiving written notice of the divorce. Every day of delay increases the risk of a wrongful payout that must be recovered directly from the ex-spouse.
• Recovery claims have limitations periods. A turnover or restitution claim against an ex-spouse who received revoked property is subject to ordinary statutes of limitations (generally measured in years from the wrongful payment or demand and refusal). Do not sit on the claim.
• Beneficiaries who prefer not to take the redirected property — for tax or family reasons — may renounce it within nine months under EPTL 2-1.11.

Common Pitfalls

• Relying on the statute instead of updating documents. EPTL 5-1.4 is a safety net, not a plan. It does not reach ERISA plans, irrevocable designations, or gifts to the ex-spouse's family, and it leaves the ex-spouse owning a tenancy-in-common share of formerly joint property.
• Assuming separation triggers revocation. It does not. Only a final divorce, annulment, declaration of nullity, or dissolution revokes under EPTL 5-1.4.
• Forgetting the stepchildren. Bequests to the ex-spouse's children and relatives survive unless the will says otherwise.
• Missing the severance of joint tenancies. Executors sometimes assume a jointly titled house or brokerage account passed to the surviving ex-spouse by survivorship. After divorce it did not — half of it is an estate asset that must be administered.
• Paying or distributing without a certified divorce judgment in the file. Fiduciaries should document marital status before distributing; an undisclosed reconciliation and remarriage revives the revoked provisions under EPTL 5-1.4(c).
• Overlooking the express-terms exception. A single sentence in the will or trust preserving the gift despite divorce defeats the statute entirely. Read the instrument before assuming revocation.

Checklist After a New York Divorce

1. Execute a new will (and revocable trust, if any) that reflects post-divorce intentions.
2. File new beneficiary designations for every life insurance policy, IRA, 401(k), pension, TOD account, and bank account in trust form — do not rely on EPTL 5-1.4, especially for employer plans.
3. Retitle real property and joint accounts consistent with the divorce settlement.
4. Execute a new power of attorney and health care proxy naming new agents.
5. Keep a certified copy of the judgment of divorce with your estate planning documents.

Albert Goodwin represents executors, administrators, beneficiaries, and former spouses in Surrogate's Court matters involving EPTL 5-1.4, including probate petitions, construction disputes, and proceedings to recover assets paid to the wrong person after a divorce.

You can contact us by phone at 212-233-1233 or by email at [email protected].