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Ex-Wife Rights After Death

Ex-wife’s rights are limited after death, but can still be significant under the right circumstances. Sometimes, ex-husbands fail to change designations of beneficiaries in an insurance policy or in a will due to neglect, oversight, or sheer laziness. Because of the failure to change a beneficiary designation, ex-wives can appear and collect the proceeds from these policies. The ability to collect on the proceeds arising from an ex-husband’s death and other rights of an ex-wife is governed by state law.

In New York, divorce automatically revokes any provision, appointment, or disposition of property in favor of the ex-wife or ex-spouse. Under Estates, Powers, and Trusts Law (EPTL) § 5-1.4, divorce, annulment, or dissolution of marriage (including legal separation) will revoke any disposition, appoint, provision, or nomination regarding a former spouse.

What types of transactions are revoked upon the finalization of divorce?

  • Dispositions in favor of an ex-wife in a will
  • Designation of ex-wife as a beneficiary in a security registration (transfer on death designation in a securities/investment/brokerage account)
  • Designation of ex-wife as beneficiary in a life insurance policy, pension, or retirement benefits plan
  • Designation of ex-wife as a beneficiary in a revocable trust
  • Designation of ex-wife as a beneficiary in Totten trust account
  • Designation of ex-wife as agent or attorney-in-fact with a power of appointment or power of disposition (usually in a power of attorney document)
  • Nomination of the ex-wife to serve as fiduciary as executor, trustee, guardian, agent, or attorney-in-fact

Type of revocation among ex-spouses when divorce is finalized

When a divorce is pending and one of the spouses dies, the divorce action is dismissed, and the spouses die as spouses with rights to inherit from each other. In New York, the surviving spouse has the right to an elective share, which means the deceased spouse cannot leave the surviving spouse with anything less than this elective share.

When a divorce is finalized and one of the spouses dies, the spouses are ex-spouses and they lose the chance to inherit from each other. Aside from that, any dispositions in favor of the ex-spouse are automatically revoked.

What does this automatic revocation mean? It means that even if the ex-spouse forgets or neglects to remove you as a beneficiary in a life insurance policy or a securities or investment account, New York law, under EPTL § 5-1.4, automatically revokes this beneficiary designation.

What if the divorce decree says that the ex-wife’s designation as beneficiary may be revoked by the ex-husband, but despite the passage of time (decades even), the ex-husband never revoked the beneficiary designation? Can the ex-wife now claim that the neglect of the ex-husband in revoking her beneficiary designation reflects the intent of the husband to actually leave that property to the ex-wife? In Re: the Estate of Sugg, No. 2013-5055/B, June 29, 2015, the Court held that EPTL § 5-1.4 automatically revokes the designation upon the finalization of the divorce. If it was the intent of the ex-husband to leave the property to the ex-wife, which in this case was life insurance policy proceeds, the ex-husband needed to perform an affirmative act. Mere neglect cannot be considered as an affirmative act. The Court explained:

“It would seem strongly presumable, at least in the case of divorce or annulment, that a testator would no longer wish testamentary benefits conferred upon a former spouse prior to the divorce or annulment to remain effective thereafter․ On balance, it would seem preferable policy to create a conclusive statutory presumption that provisions in a will for a former spouse are deemed revoked by divorce or annulment. In such case, should the testator wish to retain the provisions in his will for a former spouse, he would be required to take the affirmative step of republishing his will, or executing a new one to evidence that intention ” (Report No. 8.2.5A [1966], at 782, emphasis added).”

In cases of automatic revocation under EPTL § 5-4.1, the effect is that the ex-spouse predeceased the divorced individual at the time of revocation.

Exceptions to automatic revocation among ex-spouses in New York

When will automatic revocation among ex-spouses under EPTL § 5-4.1 not apply?

  • When the divorce decree states there will be no automatic revocation
  • When the ex-spouse re-executes the instrument
  • When the deceased ex-spouse is not a resident of New York at the time of death
  • Pensions governed by federal law, such as ERISA

Hypothetical examples

Ex-husband divorced his ex-wife in 2020. In ex-husband’s will executed on 2019, he left the remainder of his estate to ex-wife. Ex-husband, NY resident, died in 2022. Ex-wife now claims inheritance rights as remainder beneficiary under ex-husband’s will. Ex-husband’s sister, the executor, claims that designation of ex-wife as beneficiary in 2019 will has automatically been revoked under EPTL § 5-4.1. Whose claim will prevail?

The ex-husband’s sister’s contention is correct. Because of the 2020 divorce, the provision in ex-husband’s 2019 will designating ex-wife as remainder beneficiary has automatically been revoked.

What if the ex-husband re-executed his will in 2021, after divorcing ex-wife in 2019, still keeping the ex-wife as remainder beneficiary? In this case, the re-execution of the will would be considered an affirmative act, reflecting ex-husband’s intention to keep ex-wife as remainder beneficiary in his will.

What if the ex-wife was designated by the ex-husband as a beneficiary in a pension that is governed by federal law? In that case, you need to consult with a lawyer to review the interaction between federal law and state law regarding the automatic revocation to see the strength or validity of your claims.

What if the divorce decree included a property settlement where the ex-wife would be entitled to the proceeds of the ex-husband’s life insurance policy? In that case, the ex-wife would be entitled to the proceeds because a provision in the divorce decree is an exception to the rule on automatic revocation.

The ex-wife’s rights are usually severed upon divorce. The ex-wife cannot claim inheritance rights once the ex-husband passes away. This is the general rule, and there can be exceptions. It is important to discuss your situation with a lawyer to ensure that all the circumstances are taken into account when considering whether you are entitled to some rights as an ex-wife. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at attorneyalbertgoodwin@gmail.com.