N.Y. Estates, Powers & Trusts Law § 5-1.4: Revocatory effect of divorce, annulment or declaration of

§ 5-1.4 Revocatory effect of divorce, annulment or declaration of

nullity, or dissolution of marriage on disposition, appointment,

provision, or nomination regarding a former spouse

(a) Except as provided by the express terms of a governing instrument,

a divorce (including a judicial separation as defined in subparagraph

(f)(2)) or annulment of a marriage revokes any revocable (1) disposition

or appointment of property made by a divorced individual to, or for the

benefit of, the former spouse, including, but not limited to, a

disposition or appointment by will, by security registration in

beneficiary form (TOD), by beneficiary designation in a life insurance

policy or (to the extent permitted by law) in a pension or retirement

benefits plan, or by revocable trust, including a bank account in trust

form, (2) provision conferring a power of appointment or power of

disposition on the former spouse, and (3) nomination of the former

spouse to serve in any fiduciary or representative capacity, including

as a personal representative, executor, trustee, conservator, guardian,

agent, or attorney-in-fact.

(b)(1) Provisions of a governing instrument are given effect as if the

former spouse had predeceased the divorced individual as of the time of

the revocation.

(2) A disposition, appointment, provision, or nomination revoked

solely by this section shall be revived by the divorced individual's

remarriage to the former spouse.

(c) Except as provided by the express terms of a governing instrument,

a divorce (including a judicial separation as defined in subparagraph

(f)(2)) or annulment of a marriage severs the interests of the divorced

individual and the former spouse in property held by them at the time of

the divorce or annulment as joint tenants with the right of

survivorship, transforming their interests into interests as tenants in

common.

(d)(1) A payor or other third party is not liable for having made a

payment or transferred an item of property or any other benefit to a

beneficiary (including a former spouse) designated in a governing

instrument affected by a divorce, annulment, or remarriage, or for

having taken any other action in good faith reliance on the validity of

the governing instrument, before the payor or other third party received

written notice of the divorce, annulment, or remarriage.

(2) Written notice of a divorce, annulment, or remarriage under

subparagraph (1) must be mailed to the payor's or other third party's

main office or home by registered or certified mail, return receipt

requested, or served upon the payor or other third party in the same

manner as a summons in a civil action and may be filed with the

secretary of state if real property or a cooperative apartment is

affected. Upon receipt of written notice of the divorce, annulment, or

remarriage, a payor or other third party may pay any amount owed or

transfer or deposit any item of property held by it or with the court

having jurisdiction of the probate proceedings relating to the

decedent's estate or, if no proceedings have been commenced, to or with

the court having jurisdiction over the divorce, the real property or

cooperative apartment, securities, bank accounts or other assets

affected by the divorce or annulment under this section. The court shall

hold the funds or item of property and, upon its determination under

this section, shall order disbursement or transfer in accordance with

the determination. Payments, transfers, or deposits made to or with the

court discharge the payor or other third party from all claims for the

value of amounts paid to or items of property transferred to or

deposited with the court.

(e) A person who purchases property from a former spouse or any other

person for value and without notice, or who receives from a former

spouse or any other person, a payment or other item of property in

partial or full satisfaction of a legally enforceable obligation, is

neither obligated under this section to return the payment, item of

property or benefit, nor is liable under this section for the amount of

the payment or the value of the item of property or benefit. But a

former spouse or other person who, not for value, received a payment,

item of property or any other benefit to which that person is not

entitled under this section is obligated to return the payment, item of

property or benefit, with interest thereon, to the person who is

entitled to it under this section.

(f) For purposes of this section, the following terms shall have the

following meaning and effect:

(1) "Disposition or appointment of property" includes a transfer of an

item of property or any other benefit to a beneficiary designated in a

governing instrument.

(2) "Divorce or annulment" means a final decree or judgment of divorce

or annulment, or a final decree, judgment or order declaring the nullity

of a marriage or dissolving such marriage on the ground of absence,

recognized as valid under the law of this state, or a "judicial

separation," which means a final decree or judgment of separation,

recognized as valid under the law of this state, which was rendered

against the spouse.

(3) "Divorced individual" includes an individual whose marriage has

been annulled or subjected to a judicial separation.

(4) "Former spouse" means a person whose marriage to the divorced

individual has been the subject of a divorce, annulment, or judicial

separation.

(5) "Governing instrument" includes, but is not limited to, a will,

testamentary instrument, trust agreement (including, but not limited to

a totten trust account under 7-5.1(d)), insurance policy, thrift,

savings, retirement, pension, deferred compensation, death benefit,

stock bonus or profit-sharing plan, account, arrangement, system or

trust, agreement with a bank, brokerage firm or investment company,

registration of securities in beneficiary form pursuant to part 4 of

article 13 of this chapter, a court order, or a contract relating to the

division of property made between the divorced individuals before or

after the marriage, divorce, or annulment.

(6) "Revocable," with respect to a disposition, appointment,

provision, or nomination, means one under which the divorced individual,

at the time of the divorce or annulment, was empowered, by law or under

governing instrument, either alone or in conjunction with any other

person who does not have a substantial adverse interest, to cancel the

designation in favor of the former spouse, whether or not the divorced

individual was then empowered to designate himself or herself in place

of the former spouse and whether or not the divorced individual then had

the capacity to exercise the power.