Till Death (Or Divorce) Do Us Part: Untying the Knot of Ex-Spousal Designations in Non-Probate Assets

Revocation-upon-divorce statutes traditionally served to divest an ex-spouse of testamentary bequests made in their former spouse's will based on the decedent's presumend testamentary intent. In other words, these statutes assume that a decedent would "prefer that a former spouse not receive property under a will executed before the spouses divorced." Susan N. Gary, Applying Revocation-on-Divorce Statutes to Will Substitutes, 18 Quinnipiac Prob. L.J. 83, 84 and 103 (2004). A Growing number of states have extended these statutes to also cover non-probate instruments, or "will substitutes," such as life insurance policies, annuities, and retirement accounts. As a result, in the majority of states, the law now assumes that a decedent would not want to enrich a former spouse, even though the former spouse is the named beneficiary, and therefore revokes such pre-divorce beneficiary designations.

Republished with permission. The full article, "Till Death (Or Divorce) Do Us Part: Untying the Knot of Ex-Spousal Designations in Non-Probate Assets," was published in DRI's In-House Defense Quarterly, Summer 2022 Edition.