Revisiting Revocation upon Divorce?

Author:Naomi R. Cahn
Position:Harold H. Greene Professor, The George Washington University Law School
Pages:1879-1914
SUMMARY

In an increasing number of states, divorce presumptively renders an ex-spouse ineligible to benefit from the testator's will. Divorce may also impact other revocable dispositions in favor of the ex-spouse and exclude the ex-spouse's family members from benefitting in any way from the decedent's death. Revocation upon divorce statutes have became more common as divorce itself has become more... (see full summary)

 
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1879
Revisiting Revocation upon Divorce?
Naomi R. Cahn*
ABSTRACT: In an increasing number of states , divorce presumptively
renders an ex-spouse ineligible to benefit from the testator’s will. Divorce may
also impact other revocable dispositions i n favor of the ex-spouse and exclude
the ex-spouse’s family members from benefitting in any way from the decedent’s
death. Revocation upon divorce statutes h ave became more common as divorce
itself has become more common, a nd courts have been quite rigoro us in
interpreting the statutes, creating an almost irrevocable presumption of
revocation. By contrast, other co untries vary in their approaches to the effect
of a divorce on testamentary and nonprobate transfer s to an ex-spouse and
family members.
This Article challenges the utility of the presum ption of revocation upon
divorce. In raising questions about the a ppropriateness of the presumption,
this Article traces developments in divorce la wfrom the purely fault system
to the no-fault system to contemporary, a nd more collaborative, approaches to
divorceto show the historical shifts towards c ontemporary attempts to
dissolve the acrimony often associated with divorce. This Article also explores
the relatively limited sociologica l and empirical material on actual
individuals’ preferences for dispo sition of their estates to ex-spouses and their
families. And it examines the class, gend er, and race aspects of wealth
ownership as part of an effort to determine who is mo st likely to have probate
and nonprobate assets affected by the revocation statutes. Finally, this Article
discusses alternative approaches fo r states to consider.
I. INTRODUCTION ......................................................................... 1880
II. REVOCATION UPON DIVORC E STATUTES IN THE
UNITED STATES ......................................................................... 1882
A. THE DEVELOPMENT OF REVOCATION UPON DIVORCE
STATUTES ........................................................................... 1883
* Harold H. Greene Professor, The George Washington University Law School. Thanks
to Susan Gary, Adam Hirsch, Paula Monopoli, and Allison Tait for their comments, to Tom
Gallanis for his support of this project, and to Ashley Carter, Mary Kate Hunter, and Mohammad
Zaheerudin for their research assistance.
1880 IOWA LAW REVIEW [Vol. 103:1879
B. PRESUMPTIONS OF REVOCATION-UPON-DIVORCE
STATUTES ........................................................................... 1888
C. HOW COURTS APPLY REVOCATION-UPON-DIVORCE
STATUTES ........................................................................... 1889
D. REBUTTING THE PRESUMPTION ............................................ 1891
III. POLICY: COLLABORATIVE DIVORCE, GENDER, AND CLASS .......... 1892
A. DIVORCE PROCESS CHANGES ................................................. 1893
B. RELATIONSHIPS BETWEEN EX-FAMILY MEMBERS .................... 1895
C. ADDITIONAL POLICY ISSUES: GENDER, CLASS, AND RACE ........ 1898
1. Gender ....................................................................... 1898
2. Class ............................................................................ 1900
3. Race ............................................................................ 1902
IV. APPROACHES OF OTHER COUNTRIES ......................................... 1903
V. MOVING FORWARD .................................................................... 1906
A. THE PRESUMPTION ITSELF ................................................... 1907
1. Abolishing the Presumption ..................................... 1907
2. Making the Presumption Irrevocable ....................... 1908
3. Rebutting the Current Presumption ......................... 1908
i. Reinterpreting Existing Langu age ........................... 1909
ii. Additional Language ............................................. 1910
a. Showing Probable Intent ............................. 1910
b. Guardianship of a Child .............................. 1911
iii. Time Limit ............................................................ 1911
B. STATUTORY CHANGES OUTSIDE OF PROBATE LAW .................. 1912
1. The Relationship Axis................................................ 1912
2. Estate Planners Beware .............................................. 1913
VI. CONCLUSION ............................................................................ 1914
“The issue is not whether someone would probably want to revise a will
following a consequential event, but whether som eone who has not done so
would probably want to do so. And that, on reflection, is a sep arate
question.”1
I. INTRODUCTION
The presumption in an increasing number of states is that divorce
renders an ex-spouse ineligible to benefit from the testator’s will. The
Uniform Probate Code (“UPC”) and some states extend this ineligibility to
1. Adam J. Hirsch, Text and Time: A Theory of Testamentary Obsolescence, 86 WASH. U. L. REV.
609, 633 (2009).
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
probate law.
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 COMMN, 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, 18889
(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, 185052 (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 INTL ENC YCLOPAEDIA OF LAWS FAMILY & SUCCESSION LAW 21920
(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 Effectand Non-Effectof 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, 112526 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
decedents 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).

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