Does Divorce Revoke a Will or Beneficiary in New York?

Yes. Under EPTL §5-1.4(a), a divorce or annulment revokes any revocable disposition you made to your former spouse, unless the document expressly says otherwise. The statute also cancels any nomination of the ex as your executor or trustee. Your will stays valid; only the parts that benefit or appoint your former spouse drop out.

The statute does not simply delete the gift. It directs that the document be read as if your former spouse had predeceased you. That matters because most wills name a backup. If your will leaves everything “to my wife, and if she does not survive me, to my children,” the children take. If your will names no backup, that share passes as though you had no will for that property, under New York’s intestacy rules.

If you remarry the same person, the revoked provisions come back to life, as long as the divorce was the only reason they were revoked.

Before 2008, the statute covered wills and little else. The Legislature rewrote it that year (L. 2008, ch. 173) to reach the documents that actually move most of a family’s money. The current statute lists, among others:

• Life insurance beneficiary designations naming your ex.
• Transfer-on-death (TOD) registrations on brokerage and securities accounts.
• Revocable trusts, including “in trust for” bank accounts (Totten trusts).
• Pension and retirement plan designations, but only “to the extent permitted by law.” Those five words carry the big exception discussed below.
• Nominations of the ex as executor, trustee, conservator or agent.
• Joint ownership with survivorship. Property you held as joint tenants with right of survivorship becomes a tenancy in common, so your half passes under your will instead of going to your ex.

Two other statutes cover the documents that make decisions while you are alive. Public Health Law §2985(1)(e) revokes the appointment of a spouse as your health care agent on divorce or legal separation, unless the proxy says otherwise. General Obligations Law §5-1511(2)(c) ends a spouse’s authority as your agent under a power of attorney when the marriage ends by divorce or annulment, again unless the document provides otherwise.

The statute is triggered by the divorce itself, meaning the signed judgment. Filing the case does not do it. A contested case in Erie County can run a year or more, and for that whole time your spouse is still your spouse for estate purposes.

That creates a real risk. If you die while the case is pending, the divorce action generally ends with you, and your spouse is treated as a surviving spouse. Even if your will leaves them nothing, a surviving spouse can usually claim an elective share under EPTL §5-1.1-A: the greater of $50,000 or one-third of the net estate.

You are also limited in what you can change mid-case. The automatic orders in a New York divorce freeze beneficiary designations on life insurance and retirement accounts until the judgment. They do not stop you from signing a new will, health care proxy or power of attorney, and many clients do that the week the case starts.

Most private-employer 401(k) plans, pensions and group life policies are governed by a federal law, ERISA. In Egelhoff v. Egelhoff, 532 U.S. 141 (2001), the U.S. Supreme Court held that ERISA preempts a state revocation-on-divorce statute as applied to those plans. The plan pays whoever is named on its form.

Eight years later, in Kennedy v. Plan Administrator for DuPont Savings and Investment Plan, 555 U.S. 285 (2009), the Court went further. The ex-wife had waived her rights to the husband’s plan in their divorce decree, but he never changed the form. The plan paid her about $400,000 anyway, and the Court upheld that, because the plan administrator follows the plan documents. A similar rule applies to federal employees’ group life insurance under Hillman v. Maretta, 569 U.S. 483 (2013).

The practical result: for any account tied to a private employer or the federal government, assume EPTL §5-1.4 will not protect you. The beneficiary form is the only thing that counts. Dividing the account itself is a separate step, done through a QDRO.

Matter of Sugg, 49 Misc. 3d 455 (Sur. Ct. Erie County 2015). A Buffalo-area couple divorced in 2002. A later court order told the husband he could remove his ex-wife as beneficiary of a Prudential annuity policy. He never did. When he died in 2013, the policy paid her about $265,000. His estate sued, and the Erie County Surrogate ordered her to turn over all of it. The court called the statute’s effect “automatic” and held that his silence after the order was too ambiguous to prove he wanted her to keep the money.

State Farm Life & Accident Assurance Co. v. Hobin, No. 22-CV-611 (W.D.N.Y. Feb. 27, 2024). This one is harder to read. A father divorced in June 2021 and died two months later. His ex-wife, who was raising their three young children, was still the named beneficiary on a policy of about $100,000. Their separation agreement never mentioned the policy or required him to keep insurance for the children. The federal court in Buffalo applied EPTL §5-1.4 and awarded the money to the backup beneficiary, his nephew. The judge said he was sympathetic and that the statute left him no room to consider what the father may have intended.

Both cases turned on paperwork that took five minutes to fix and was never fixed.

Sometimes keeping the ex on a policy is the point. When one parent pays child support or maintenance, the other parent usually wants life insurance to replace those payments if the payor dies. Domestic Relations Law §236(B)(8)(a) lets the court order a spouse to buy or keep life insurance and to name the other spouse or the children as irrevocable beneficiaries for a set period.

Hobin shows what happens when that is left vague. To survive EPTL §5-1.4, the agreement or judgment should say it expressly: which policy, how much coverage, who the beneficiary is, how long it lasts, and that the designation is meant to survive the divorce. The policy owner should then file a new beneficiary form after the judgment so the insurer’s records match the order. Our guide to when child support ends in New York covers how long that coverage usually needs to run.

The statute also reaches only designations you could change on your own. If your ex owns a policy on your life, it is not “revocable” by you, and divorce alone will not change who collects.

Once the judgment is signed and entered with the Erie County Clerk:

• Get certified copies of the judgment. Insurers, banks and plan administrators will ask for one.
• Send written notice. EPTL §5-1.4 protects an insurer or bank that pays your ex before it receives written notice of the divorce. After notice, that protection ends.
• File new beneficiary forms for every 401(k), 403(b), pension, IRA, life policy and TOD account, including the ones the statute already covers. A clean form prevents a lawsuit.
• Sign a new will. Even with the ex removed by law, a will that sends assets into intestacy or names no backup executor is a problem for your children.
• Sign a new health care proxy and power of attorney naming someone you trust now.
• Check the deed. If you kept the house, record the deed the judgment requires. If you still co-own property with your ex, you now own it as tenants in common.

Our Buffalo divorce attorneys can build this list into your settlement so nothing is left on a form you signed years ago.