Former Spouse Rights After Death in New York (EPTL § 5-1.4)

By Albert Goodwin, Esq., attorney admitted to practice in New York. This page discusses EPTL § 5-1.4 as amended effective July 7, 2008, and the federal cases that limit it.

People often die without updating the paperwork they signed during a marriage. A will from twenty years ago still leaves everything to "my wife." A life insurance policy from a first job still names a spouse who left a decade ago. A 401(k) still lists an ex-husband. The question then lands on the executor, the children from the marriage, and the former spouse: who gets the money?

In New York the starting point is Estates, Powers and Trusts Law (EPTL) § 5-1.4. A final divorce revokes most gifts and beneficiary designations in favor of a former spouse. The statute is gender-neutral, so the rules below apply equally to an ex-wife and an ex-husband. There are exceptions, and the largest one comes from federal law rather than New York law. This page covers both.

The general rule: divorce revokes gifts and designations to a former spouse

EPTL § 5-1.4(a) provides that, except as the express terms of a governing instrument provide otherwise, a divorce or annulment revokes any revocable disposition, appointment, provision, or nomination that a divorced individual made for the benefit of the former spouse. The statute lists the instruments it reaches:

• Wills: a bequest, devise, or residuary gift to the former spouse.
• Transfer-on-death securities: a beneficiary registration on a brokerage or investment account under EPTL article 13, part 4.
• Life insurance: a beneficiary designation on a policy, to the extent state law is allowed to govern the policy (see the federal law section below).
• Pension and retirement plans: a beneficiary designation, again only "to the extent permitted by law." The legislature wrote that qualifier because federal law controls most employer plans.
• Revocable trusts and Totten trusts: a beneficiary interest in a living trust or an "in trust for" bank account.
• Powers of appointment or disposition: a power given to the former spouse to direct where property goes.
• Fiduciary nominations: the naming of the former spouse as executor, trustee, guardian, agent under a power of attorney, or health care agent.

Under EPTL § 5-1.4(b), the governing instrument is read as if the former spouse had died before the divorced individual at the moment of the divorce. If the will names an alternate beneficiary, the alternate takes. If it does not, the gift falls into the residuary estate or passes by intestacy under EPTL § 4-1.1. If the former spouse was the sole named executor, the successor executor serves, or the court issues letters of administration c.t.a. under SCPA § 1418.

What triggers the revocation

The statute is triggered by a judgment of divorce, an annulment, a declaration of nullity, or a dissolution of marriage that is final and recognized as valid in New York. A judicial separation, meaning a judgment of separation entered by a court, also qualifies. A separation agreement signed by the spouses without a court judgment does not. Spouses who have signed an agreement but have not obtained a judgment are still married for inheritance purposes.

Timing matters in a second way. The 2008 amendment applies to the estates of people who die on or after July 7, 2008, regardless of when the will or beneficiary form was signed. Before that amendment, the statute reached only wills. A beneficiary form signed in 1995 naming a spouse divorced in 2000 is revoked if the decedent died in 2015.

What the statute does not revoke

• Gifts to the former spouse's relatives: New York did not adopt the Uniform Probate Code's extension to the ex-spouse's family. A bequest to a former stepchild or former mother-in-law stands.
• Irrevocable dispositions: an irrevocable trust funded during the marriage is not affected.
• Dispositions made after the divorce: a will or beneficiary form signed after the judgment, naming the former spouse, is not undone by a divorce that came earlier.
• Instruments that say otherwise: a document that expressly states the gift survives divorce is honored.

Death while the divorce is still pending

If a spouse dies before the judgment of divorce is signed, the matrimonial action abates. The parties die married. The survivor is a surviving spouse with the right to an intestate share under EPTL § 4-1.1 and the right of election under EPTL § 5-1.1-A, which guarantees the greater of $50,000 or one-third of the net estate, including testamentary substitutes. The elective share can be waived in a prenuptial or separation agreement that meets the formalities of EPTL § 5-1.1-A(e).

EPTL § 5-1.2 lists the situations in which a spouse who is still legally married loses those rights anyway. They include a final judgment of separation rendered against the surviving spouse, abandonment of the decedent by the survivor, and the survivor's failure or refusal to support the decedent while having the means to do so. A judgment of separation rendered against the decedent, rather than the survivor, does not disqualify the survivor. These are fact-heavy disputes and are usually litigated in Surrogate's Court as part of a contested inheritance proceeding.

Life insurance, 401(k)s and pensions: the federal law question

This is the question most people arrive here with, and the answer depends on what kind of account or policy it is.

Individually owned life insurance, annuities and IRAs: New York law governs

A life insurance policy the decedent bought on his or her own, an individual annuity, and an IRA are not employer benefit plans. ERISA does not reach them. EPTL § 5-1.4 applies, and the designation of the former spouse is revoked. The United States Supreme Court confirmed in Sveen v. Melin, 138 S. Ct. 1815 (2018), that a state revocation-on-divorce statute can be applied to a policy issued before the statute was enacted without violating the Contracts Clause. New York's statute is of the same type as the Minnesota statute upheld in Sveen.

Employer-sponsored plans: the plan administrator pays the person on the form

A 401(k), 403(b), employer pension, or employer-provided group life insurance policy is usually governed by the Employee Retirement Income Security Act of 1974 (ERISA). ERISA § 514(a), 29 U.S.C. § 1144(a), preempts state laws that "relate to" an employee benefit plan. In Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the Supreme Court held that Washington's revocation-on-divorce statute was preempted as applied to an ERISA pension and an ERISA life insurance plan. The plan administrator must pay the beneficiary named in the plan documents, even if that person is a former spouse and even if state law says the designation is revoked.

In Kennedy v. Plan Administrator for DuPont Savings & Investment Plan, 555 U.S. 285 (2009), the Court went further. The ex-wife had waived her interest in the plan in the divorce decree, but the participant never submitted a new beneficiary form. The Court held that the plan administrator properly paid the ex-wife. Under ERISA's "plan documents rule," 29 U.S.C. § 1104(a)(1)(D), the administrator looks only at the plan and the beneficiary form on file.

So for an ERISA plan in New York, EPTL § 5-1.4 does not stop the payment. If the former spouse is on the form, the plan pays the former spouse. Executors sometimes spend months arguing with a plan administrator who is simply following federal law.

What the estate can do after the plan pays

Kennedy expressly left open whether the estate could sue the former spouse after the money was distributed to enforce a waiver in the separation agreement or judgment of divorce. Federal appellate courts have since allowed that claim. In Estate of Kensinger v. URL Pharma, Inc., 674 F.3d 131 (3d Cir. 2012), and Andochick v. Byrd, 709 F.3d 296 (4th Cir. 2013), the courts held that once the plan has paid and ERISA's interest in administrative simplicity is satisfied, the estate may pursue the ex-spouse in a contract or constructive trust action to recover funds she or he agreed to give up.

The practical sequence in New York is therefore:

1. Review the separation agreement and judgment of divorce for a waiver of the plan benefits or a clause releasing all claims against the other spouse's estate.
2. Let the plan pay the named beneficiary rather than litigating against the administrator, which is usually a losing position.
3. Bring a claim against the former spouse personally, in Supreme Court or as part of a discovery and turnover proceeding under SCPA §§ 2103 and 2104, to recover the proceeds based on the waiver.

Without a waiver in the matrimonial papers, the estate generally has no claim. EPTL § 5-1.4 alone will not support a suit to recover ERISA benefits from a former spouse.

Federal employee and military life insurance

Federal Employees' Group Life Insurance (FEGLI) and Servicemembers' Group Life Insurance (SGLI) follow federal statutes with their own order-of-precedence rules. In Hillman v. Maretta, 569 U.S. 483 (2013), the Supreme Court held that FEGLI preempted a Virginia statute that both revoked the ex-spouse's designation and gave the widow a cause of action against the ex-spouse for the proceeds. The ex-wife kept the money. Ridgway v. Ridgway, 454 U.S. 46 (1981), reached the same result for SGLI. If the decedent was a federal employee or servicemember, the beneficiary form on file is almost always final.

Qualified domestic relations orders

A former spouse may also have rights that do not depend on a beneficiary form at all. If the judgment of divorce divided a pension or 401(k) through a qualified domestic relations order (QDRO) under 29 U.S.C. § 1056(d)(3), the former spouse owns the share awarded by the QDRO and may be designated as the surviving spouse for survivor annuity purposes. Those rights come from the court order and survive the participant's death. An executor who finds a QDRO in the file should not treat the former spouse's claim as revoked.

Jointly owned real estate and bank accounts after divorce

Spouses often hold the marital home as tenants by the entirety, which carries a right of survivorship. A tenancy by the entirety can exist only between married people, so the judgment of divorce converts it to a tenancy in common by operation of law. EPTL § 5-1.4(a) states the rule directly: a divorce severs the interests of the former spouses in property they held at the time of the divorce as joint tenants with right of survivorship or as tenants by the entirety and converts them to tenancies in common.

The consequence after death is that the surviving former spouse does not take the whole property. The decedent's half passes under the decedent's will or by intestacy. The two sides then co-own the house, and either may seek a partition or a buyout. See our pages on a house held in two names and buying out a co-owner of an inherited residence.

Two cautions. First, the severance applies to property held jointly at the time of the divorce. A joint account the former spouses opened together after the divorce is governed by Banking Law § 675 and ordinary joint tenancy rules, not by § 5-1.4. Second, the judgment of divorce or stipulation of settlement frequently transfers the house to one spouse outright, or directs a sale. Those terms control over the default severance rule. Read the judgment before assuming the estate owns half.

A joint bank account held at the time of divorce is severed the same way. The surviving former spouse is entitled to half, and the estate is entitled to half. If the bank has already paid the entire balance to the survivor, the executor may need a turnover proceeding to recover the estate's share. Compare the rules for an account with no beneficiary designation at all.

Separation agreements that require life insurance for the former spouse

Many New York separation agreements and judgments require the paying spouse to keep a life insurance policy in a stated amount naming the other spouse, or the children, as beneficiary to secure maintenance or child support. Domestic Relations Law § 236(B)(8)(a) authorizes the court to order this. When the obligation exists, the former spouse's right to the insurance does not depend on EPTL § 5-1.4 and is not revoked by it. The right is contractual.

The New York Court of Appeals has enforced these obligations against the estate even when the obligor let the required policy lapse and bought a different one. In Simonds v. Simonds, 45 N.Y.2d 233 (1978), and again in Rogers v. Rogers, 63 N.Y.2d 582 (1984), the Court imposed a constructive trust in favor of the first wife on the proceeds of a later policy that named the second wife, to the extent of the amount the separation agreement required. If no policy exists at all, the former spouse has a claim against the estate for the shortfall, presented as a creditor's claim.

For the former spouse, the first task is to obtain a complete copy of the agreement and judgment and identify the exact insurance clause: the amount, the duration, and whether the obligation ended when support ended. For the executor, the task is to determine whether the clause was still in force at death and whether any policy on file satisfies it before distributing proceeds to someone else.

Maintenance and child support arrears as estate claims

Maintenance generally ends on the death of either party unless the agreement says otherwise. Arrears that accrued before death do not disappear. Unpaid maintenance and unpaid child support are debts of the decedent, and the former spouse may present them as creditor claims to the executor or administrator under SCPA § 1803. A claim should be in writing, state the amount, and be presented within seven months after letters issue to avoid the risk that assets are distributed first. If the executor rejects the claim, the former spouse may bring a proceeding under SCPA § 1808 or an action in another court to establish it.

Future child support is a different question. Absent an agreement providing that the obligation survives death, a parent's support duty generally terminates when the parent dies, which is why matrimonial lawyers insist on the life insurance clause discussed above. Where the children are the decedent's children, they also have their own inheritance rights under the will or under EPTL § 4-1.1, separate from anything owed to the former spouse.

Exceptions: when the former spouse keeps the gift

A former spouse keeps the gift or designation in the following situations:

• Express terms: the will, trust, or beneficiary form states that the disposition is to remain in effect after divorce.
• Re-execution: the decedent re-executed the will or signed a new beneficiary form after the divorce, naming the former spouse. A disposition made after the divorce is not revoked by it.
• Remarriage to each other: under EPTL § 5-1.4(d), provisions revoked solely by the statute are revived if the divorced individual remarries the former spouse.
• Matrimonial papers that grant the right: a separation agreement or judgment that requires the designation to continue, or that awards the proceeds to the former spouse, creates an enforceable right regardless of the statute.
• Federal preemption: ERISA plans, FEGLI, and SGLI, discussed above.
• Non-New York domicile: if the decedent was domiciled in another state at death, that state's law generally governs the disposition of personal property and the revocation question, while New York real property remains subject to New York law under EPTL § 3-5.1. Some states have narrower statutes or none at all.

Neglect is not an exception. In Matter of Sugg (Sur Ct, New York County, June 29, 2015, File No. 2013-5055/B), a former wife argued that her ex-husband's failure to change a life insurance beneficiary over many years, when the divorce papers permitted him to do so, showed that he intended her to keep the proceeds. The Surrogate rejected the argument and applied EPTL § 5-1.4. The court quoted the 1966 report of the Bennett Commission on Estates (Report No. 8.2.5A, at 782), which recommended a conclusive statutory presumption of revocation and explained that a testator who wanted a former spouse to keep a gift "would be required to take the affirmative step of republishing his will, or executing a new one to evidence that intention." That passage is the Commission's reasoning adopted by the court, not language the court composed. The holding is that only an affirmative act after the divorce preserves the gift.

What an executor should do when an insurer or brokerage still lists the former spouse

1. Send written notice immediately. EPTL § 5-1.4(e) protects a payor that pays the named beneficiary before receiving written notice of a claimed revocation. Once the insurer, bank, or brokerage has written notice with a copy of the judgment of divorce, it should not pay the former spouse and may hold or deposit the funds pending a determination.
2. Determine whether the asset is governed by ERISA or another federal statute. Ask the plan administrator for the plan documents and the beneficiary form on file. If it is an ERISA plan, the plan will pay the former spouse, and the estate's remedy, if any, lies in the matrimonial papers.
3. Read the separation agreement and judgment. Look for insurance clauses, waivers of retirement benefits, releases of estate claims, QDROs, and any provision transferring jointly held property.
4. Recover funds already paid. If the former spouse received a payment that § 5-1.4 revoked, the statute obligates a recipient who did not give value to return it. The estate may bring a turnover proceeding under SCPA § 2103 or an action for money had and received.
5. Treat support arrears as claims. Evaluate any claim for maintenance or child support arrears on its merits and either allow or reject it within the time frames in SCPA article 18.

What a former spouse should do if the designation or gift still stands

1. Obtain the complete judgment of divorce, any stipulation of settlement or separation agreement, and any QDRO.
2. Identify the asset type. For an ERISA plan, FEGLI, or SGLI, submit the claim to the plan or insurer directly with the death certificate. The plan must follow the beneficiary form.
3. For a will, locate any codicil or re-executed will dated after the divorce. If the executor has filed for probate, you are entitled to notice if you are named in the propounded will, and you may object or raise a construction question as to whether § 5-1.4 applies.
4. For an insurance clause in the separation agreement, present a written claim to the executor and, if the policy was allowed to lapse or redirected, consider a constructive trust action under Rogers.
5. For jointly held real estate, confirm how title was held at the divorce and what the judgment said about the property before accepting or asserting a survivorship claim.

Hypothetical examples

Old will, later divorce. A husband signs a will in 2019 leaving his residuary estate to his wife. They divorce in 2020. He dies in 2022, domiciled in New York, without signing a new will. His sister, the named executor, argues the gift is revoked. She is correct. Under EPTL § 5-1.4(a) and (b), the former wife is treated as having predeceased him, and the residuary passes to the alternate beneficiary or by intestacy.

Re-executed will. Same facts, except that in 2021, after the divorce, he re-executes the will with the same residuary clause naming his former wife by name. The gift stands. The disposition was made after the divorce and is not revoked by it.

401(k) still naming the ex-wife. A participant divorces in 2015. The judgment states that each party waives any interest in the other's retirement accounts. He never changes the beneficiary form on his 401(k), and dies in 2024. The plan administrator pays the former wife under Egelhoff and Kennedy; EPTL § 5-1.4 cannot stop that payment. The estate may then sue the former wife to recover the funds under the waiver, relying on the reasoning in Kensinger and Andochick. If the judgment contained no waiver, the former wife keeps the money.

Separation agreement requires insurance. A wife's separation agreement requires her former husband to maintain a $500,000 life insurance policy naming her as beneficiary until maintenance ends in 2030. He dies in 2026 with a $500,000 policy naming his new spouse. The former wife is entitled to a constructive trust on the proceeds in the amount the agreement required, under Rogers v. Rogers. EPTL § 5-1.4 does not defeat her claim because her right arises from the contract, not from a beneficiary form.

Jointly owned house. Former spouses took title to a Queens house as tenants by the entirety in 2005 and divorced in 2018. The judgment is silent about the house. The ex-husband dies in 2023. The ex-wife does not take the whole house by survivorship. The divorce severed the tenancy, and the ex-husband's half passes to his estate. The two sides are tenants in common.

Ex-wife rights and ex-husband rights: the same statute

Searches for "ex-wife rights after death" and "ex-husband rights after death" lead to the same place. EPTL § 5-1.4 speaks of a "divorced individual" and a "former spouse." It applies to opposite-sex and same-sex marriages, and it applies the same way regardless of which former spouse died. The practical differences come from the facts: who was the participant in the retirement plan, who was obligated to carry insurance, and how title to the home was held.

How we can help

The Law Offices of Albert Goodwin represents executors, administrators, children of a prior marriage, and former spouses in disputes over revoked and preserved designations, separation agreement insurance claims, support arrears, and jointly held property. We appear in the Surrogate's Courts of New York County, Kings County, Queens County, and the surrounding counties, and in Supreme Court matrimonial and post-judgment enforcement matters. Our offices are in Manhattan, Brooklyn, and Queens. You can call us at 212-233-1233 or email [email protected].

For related reading, see our pages on liability for a spouse's debts in New York, a sample New York probate timeline, and resolving conflicts between a beneficiary and an executor.