BILL NUMBER: S6175

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 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 for that 2008
legislation was to extend the application of former section 5-1.4 to
non-probate transfers.

The form of the 2008 legislation was adopted substantially verbatim from
section 2-804 of the 1990 Uniform Probate Code ("UPC"). However, one of
the aspects of section 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 adoption of a rebuttable presumption extend-
ing the revocatory effect of divorce to "relatives" of a decedent's
former spouse, unless there is substantial evidence of contrary intent.
(This measure would allow CPLR 4519 evidence but would provide that such
evidence would have to be supported by other evidence.).

Our Advisory Committee considered and rejected adoption of the section
2-804 of the UPC for the following reasons. Under section 2-804, divorce
revokes dispositions to both former spouses and relatives of former
spouses " 
Except 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 the Advisory Committee's recommendation, 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.

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. Such probable intent is likely 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 recommenda-
tion to permit such evidence is based on its judgment that (a) the issue
of dispositions to relatives of former spouses arises infrequently, (b)
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.

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

 
2017-18 LEGISLATIVE HISTORY:

Senate 6503 (Sen. Bonacic)  
REFERRED TO JUDICIARY Assembly 6229 (M. of
A. Seawright  
ORDERED TO 3RD RDG., CAL. 438
2015-16 Legislative History:Senate 5684 (Sen. Bonacic)  
COMMITTED TO
RULES Assembly 7638 (M. of A. Seawright)  
ADVANCED TO 3RD RDG., CAL.
400.