BILL NUMBER: S6503

SPONSOR: KAPLAN
 
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 his Surro-
gate's Court Advisory Committee.

Present § 5-1.4 of the EPTL was added in 2008, on the basis of a study
and recommendation of the Surrogate's Court Advisory Committee and the
T&E Section of the NYSBA. The primary purpose of that 2008 legislation
was to extend the application of former § 5-1.4 to non-probate trans-
fers.

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 (by either this
Committee or the T&E Section) was the provision that expanded the revo-
catory 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 Dept. decision in Estate of Lewis, 114
A.D.3d 203, 978 N.Y.S.2d 527 (2014), the Committee has considered the
issue de novo, and recommends the adoption of 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. (The proposal would allow CPLR 4519 evidence but would
provide that such evidence would have to be supported by other
evidence.)

The Committee considered and rejected the adoption 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 recom-
mendation, this approach would be retained for revocation of disposi-
tions to divorced spouses but the presumed revocatory effect on disposi-
tions 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.

It is the Committee's judgment 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 experi-
ence which might include a contrary intention which was not memorialized
in the decedent's will executed prior to the divorce, such as, for exam-
ple, a continuing relationship with a step child. The Committee believes
that such probable intent is more problematic than the probable inten-
tion of such decedents with respect to dispositions to divorced spouses
themselves.


It should be noted that the 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, (b)
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 (c) 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.

The Committee therefore recommends that a new paragraph (g) be added to
EPTL 5-1.4, to provide as follows:

"(g) The revocatory effect of paragraph (a) shall be presumed to apply
to a person in any relationship to the divorced individual that was
based upon said marriage, including but not limited to step children,
step grandchildren and parents in law, unless there is substantial
evidence of the divorced individual's contrary intention. Testimony with
regard to such intention shall not be disqualified under CPLR 4519
provided that such testimony is supported by other evidence."

This measure would take effect immediately.

 
2019-20 LEGISLATIVE HISTORY:

OCA 2019-32; (A7520 - Asm. Seawright) (Ref to Judiciary)

(S6175 - Sen Kaplan) (PASSED 6/6/19)