Law Blog


What happens when a person executes a will and then marries?

, / 178 0

New York utilizes a spousal right of election when deciding on inheritances for spouses. This law states that should a spouse pass away, his or her spouse will receive an “elective share” of $50,000 or one-third of the decedent’s estate. Should a spouse not receive this elective share, he or she has the right to file for it as long as it’s within a six-month window after an executor for the estate has been named, according to New York inheritance laws. He/she should seek for the help of a will and trust lawyer.

N.Y. Estates, Powers and Trusts Law 5-1.3 (EPTL) governs the revocatory effect of a marriage after the execution of a will, but it applies only to wills executed before September 1, 1930. If the testator executes a will and later marries, the surviving spouse is entitled to receive a share equal to the intestate share which would pass to the spouse had the testator died intestate. If the testator makes a new will after marriage, the statute does not apply.If a will is executed on or after September 1, 1930, the provisions

of EPTL 5-1.1 and 5-1.1-A (regarding right of election), rather than EPTL 5-1.3, govern the rights of the surviving spouse.

Will Revocation by Termination of Marriage

Section 5-1.4 of the EPTL addresses the revocatory effect of the termination of a marriage on any disposition, appointment, provision, or nomination made in favor of a former spouse by will or otherwise. Under an amendment applying to (i) marriages ending in divorce or annulment after July 7, 2008 and (ii) any disposition, appointment, provision, or nomination taking effect only upon an individual’s death after July 7, 2008, any revocable disposition or appointment of property by a testator to or for the benefit of a former spouse, as well as any provision conferring a power of appointment or disposition on a former spouse, and any nomination of a former spouse in a fiduciary or representative capacity (including as a personal representative, executor, trustee, conservator, guardian, agent, or attorney-in-fact), is statutorily revoked.

As under prior law, the revised statute applies to dispositions made bywill, securities held in transfer-on-death form, and any nomination toserve as executor or trustee.3 However, the revised statute extends the

reach of revocation by reason of the termination of a marriage to dispositions and appointments made by beneficiary designation in a life insurance policy,4 pension or retirement benefits plan, and to dispositions and appointments made by revocable trust, including any bank account held in trust form, and transforms any interest owned by a testator and his former spouse as joint tenants with right of survivorship into interests as tenants in common.

Thus, the revised statute treats any revocable disposition, appointment, provision, or nomination made in favor of a former spouse consistently, regardless of form6 by requiring that the relevant governing instrument be read as though the former spouse immediately predeceased the testator. The statute, however, does not revoke dispositions to, and nominations of, a former spouse’s relatives, applying only to the dispositions to or for the benefit of a former spouse.Revocations under § 5-1.4 are only revived upon remarriage and only if the revocation was purely by reason of statute and thus would not apply to a revocation under EPTL 3-4.1.