New York Estate Rights Can be Revoked by a Divorce

The estate of a decedent can be affected by many different pre-death and post death events. For example, the decedent may be involved in a lawsuit during life that is still ongoing at the time of death. It will then be up to the estate Executor or Administrator to take over the lawsuit to its conclusion. Depending upon the nature of the case, the lawsuit may result either in a liability to the estate or an asset if the estate recovers money.

New York Probate Attorneys are familiar with many other situations that can impact estate settlement. One such situation involves the marital status of the decedent at the time of death. Under the New York estate laws, a spouse of the decedent has certain rights. If a married person dies without a Last Will, Estates, Powers and Trusts Law (“EPTL”) Section 4-1.1 provides that the surviving spouse would inherit a share of the decedent’s estate. Also, it is not uncommon that a spouse is named as a primary beneficiary in a decedent’s Last Will and Testament. However, even where a spouse is not named in a Will, EPTL Section 5-1.1-A, entitled “Right of election by surviving spouse”, provides the survivor with the right to receive the greater of $50,000.00 or one-third (1/3) of a decedent’s net estate.Another part of the EPTL, Section 5-1.4, provides that where a person is divorced, dispositions contained in a Last Will and other provisions made in favor of the surviving spouse are deemed to be revoked. While this result sounds clear enough, sometimes the events surrounding a divorce can result in confusion. A recent case decided on August 18, 2015 by Dutchess County Surrogate James Pagones entitled Will of Jon David E., provides an interesting example of facts resulting in estate litigation.

In David, the decedent and his wife were in the midst of a divorce proceeding when the decedent died. Prior to the death, the parties had entered into a Court settlement stipulation that provided for the resolution of the divorce issues as well as a release of each parties’ rights to the others estate. However, the decedent died before the final Court Judgment of divorce was signed. The basic New York rule is that a divorce action abates (i.e., terminates) if one of the parties dies before the case reaches a final judgment. However, the Courts also recognize that the divorce would be deemed effective if, at the time of death, the only step necessary to finalize the divorce was to enter the final judgment with the Court.

As can be learned from the issues presented in David, it is always helpful to consider proper estate planning. This is especially important at a time when significant events occur that can effect the proper disposition of a person’s estate. For instance, if an individual is going through divorce proceedings he may want to consider changing his Will or other beneficiary designations before the final judgment of divorce to avoid any potential transfer of all assets to a surviving spouse in the event of death prior to the final divorce. A person should also consider other issues such as amending the name of a spouse-agent in a health care proxy or power of attorney.

I have assisted clients in many different situations regarding spousal rights including beneficiary designations and rights of election. If you have any questions regarding probate or estate rights or estate disputes, please call me now for a free review of your issue.

New York Probate and Administration Attorney Jules Martin Haas, Esq. has been representing clients in New York Trusts and Estates matters in Manhattan and Queens Surrogate’s Court proceedings throughout the past 30 years. If you or someone you know is involved with or has questions about a New York Probate or intestate estate, please contact me at (212) 355-2575 or email:, for an initial consultation.

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