Senate Bill S5684

                                BILL NUMBER:S5684

TITLE OF BILL:

An act to amend the estates, powers and trusts law, in relation to the
revocatory effect of divorce and relatives of a former spouse

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.

Present section 5-1.4 of the EPTL was added in 2008, on the basis of a
study and recommendation of our Advisory Committee and the T&E Section
of the New York State Bar Association. The primary purpose of that
2008 legislation was to extend the application of former § 5-1.4 to
non-probate transfers.

The form of the 2008 legislation was adopted substantially verbatim
from § 2-804 of the 1990 Uniform Probate Code ("UPC"). However, one of
the aspects of UPC § 2-804 which was not adopted in 2008 (nor called
for either by our Committee or the T&E Section) was the provision that
expanded the revocatory effect of the divorce beyond the divorced
spouse of the decedent to include the "relatives" of the divorced
spouse of the decedent.

As a result of the recent Fourth Department decision in Estate of
              

Lewis, 114 A D.3d 203 (2014), our Advisory Committee has considered
the issue de novo, and now recommends addition of a new EPTL 5-1.4 (g)
adopting a rebuttable presumption extending the revocatory effect of
divorce to "relatives" of the decedent's former spouse, unless there
is substantial evidence of contrary intent.{1}

Our Advisory Committee considered and rejected adoption of the
highlighted provision of UPC § 2-804 for the following reasons. Under
UPC § 2-804 divorce revokes dispositions to both former spouses and
relatives of former spouses "(e)xcept as provided by the express terms
of a governing instrument, a court order, or a contract relating to
the division of the marital estate made between the divorced
individuals before or after the marriage, divorce, or annulment, the
divorce or annulment of a marriage." Under our Advisory Committee's
recommendation, built into this measure, this approach would be
retained for revocation of dispositions to divorced spouses but the
presumed revocatory effect on dispositions to relatives, on the other
hand, could be rebutted by any substantial evidence, including
evidence which would be inadmissible by virtue of CPLR 4519, provided
that such evidence is supported by other proof.

Our Advisory Committee's view is that this approach reflects the
probable intent of most decedents in connection with dispositions to
"relatives" of divorced spouses, but leaves room for the varieties of
human experience which might include a contrary intention which was
not memorialized in the decedent's will executed prior to the divorce,
such as, for example, a continuing relationship with a step child. The
Committee believes that such probable intent is more problematic than
the probable intention of such decedents with respect to dispositions
to divorced spouses themselves.


It should be noted that our Advisory Committee discussed at some
length whether evidence admissible on the issue of revocatory intent
should include evidence otherwise disqualified under CPLR 4519. Its
recommendation to permit such evidence is based on its judgment that
(a) the issue of dispositions to relatives of former spouses arises
infrequently, (2) that in such infrequent instances excluding CPLR
4519 evidence would, more likely than not, result in a disposition not
in harmony with the decedent's probable intent, and (3) there is a
sufficient safeguard against fraud in providing that otherwise
excludible CPLR 4519 evidence must be supported by other evidence
before there can be "substantial evidence" of contrary intent.

This measure, which would have no fiscal impact, would take effect
immediately.

Legislative History:  None. New proposal.

{1} The measure would allow CPLR 4519 evidence but would provide that
such evidence would have to be supported by other evidence.