2018] REVISITING REVOCATION UPON DIV ORCE 1881
other revocable dispositions in favor of the ex-spouse and also exclude the ex-
spouse’s family members from benefitting in any way.2 By contrast, other
countries vary in their approaches to the effect of a divorce on testamentary
and nonprobate transfers to an ex-spouse and family members.3
Many commentators take the position that the (almost irrebuttable)
presumption of revocation leads to the most appropriate outcome,4 because
it serves as a desirable rule of construction by effectuating the decedent’s
intent and increases efficiency by decreasing transaction costs associated with
probate.5 This Article challenges the utility of the presumption of revocation
in the United States first, by comparing and contrasting that approach within
different states and in other countries, then, by putting the presumption into
both historical and sociological context, and finally, by analyzing the
diverging approaches to the relational impact of divorce within family law and
In raising questions about the appropriateness of the presumption, the
Article bridges the fields of both trust and estates law and family law,
demonstrating their interrelationship and the consequent need for the two
2. See UNIF. PROBATE CODE § 2-804 (UNIF. LAW COMM’N, amended 2010); RESTATEMENT
(THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 4.1 (AM. LAW INST. 1999). The UPC
presumption of revocation upon di vorce can be rebutted in limited ci rcumstances, “by the
express terms of a governing instrument, a court order, or a contract relating to the division of
the marital estate made be tween the divorced individuals before or after the marriage.”
UNIF. PROBATE CODE § 2-804(b). For commentary on this trend and federal-state preemption
issues, see, e.g., T.P. Gallanis, E RISA and the Law of Succession, 65 OHIO ST. L .J. 185, 188–89
(2004); Susan N. Gary, Applying Revocation-on-Divorce Statutes to Will Substitutes, 18 QUINNIPIAC
PROB. L.J. 83, 113 (2004); Laura A. Rosenbury, Federal Visions of Private Family Support, 67 VAND.
L. REV. 1835, 1850–52 (2014).
3. For example, several Australian jurisdictions provide that a will is revoked by divorce or
annulment; another revokes the will entirely; while in others, there is no revocation. See J. Neville
Turner, Australia, in 1 INT’L ENC YCLOPAEDIA OF LAWS FAMILY & SUCCESSION LAW 219–20
(R. Blanpain et al. eds., 2014); LAW REFORM COMM . OF S. AUSTL., FORTY-FOURTH REPORT OF THE
LAW REFORM COMMITTEE OF SOUTH AUSTRALIA TO THE ATTORNEY-GENERAL: RELATING TO THE
EFFECT OF DIVORCE UPON WILLS 7–8 (1977), https://law.adelaide.edu.au/research/law-reform-
institute/documents/committee-repo rts/44-Effect-of-Divorce-up on-Wills.pdf.
4. See, e.g., E. Gary S pitko, The Expressive Function of Succession Law and the Merits of Non-
Marital Inclusion, 41 ARIZ. L. REV. 1063, 1084 (1999) (obse rving that such provisions express an
approach that “the property owner is unlikely to wish to benefit her former spouse and, had she
thought about it, probably would have revoked the pre-divorce beneficiary designation”);
Robert Whitman, Revocation and Revival: An Analysis of the 1990 Revision of the Uniform Probate Code
and Suggestions for the Future, 55 ALB. L. REV. 1035, 1054 (1992); Molly Brimmer, Comment, When
an Ex Can Take It All: The Effect—and Non-Effect—of Revocation on a Will Post-Divorce, 74 MD. L. REV.
969, 971 (2015). As Adam Hirsch explains, the revocation upon divorce “inferences may be
related to the presumption against absurd or unreasonable testamentary intentions . . . although
they may also reflect the in dependent public policy o f protecting the family.” Adam J. Hirsch,
Inheritance and Inconsistency, 57 OHIO ST. L.J. 1057, 1125–26 n.208 (1996) (citations omitted).
As discussed, there is little empirical evidence for (or against) the presumption. See infra Section II.
5. Rule s of construction serve as a proxy for w hat the drafter believes would be the
decedent’s intent. See Stewart E. Sterk & Melanie B. Leslie, Accidental Inheritance: Retirement
Accounts and the Hidden Law of Succession, 89 N.Y.U. L. Rev. 165, 214 (2014).