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A07798 Summary:

BILL NOA07798
 
SAME ASSAME AS S06503
 
SPONSORSeawright
 
COSPNSR
 
MLTSPNSR
 
Amd §5-1.4, EPT L
 
Relates to the revocatory effect of divorce.
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A07798 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A7798
 
SPONSOR: Seawright
  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 § 5-1.4 of the EPTL was added in 2008, on the basis of a study and recommendation of the Surrogate's Court Advisory Committee and the T&E Section of the NYSBA. The primary purpose of that 2008 legislation was to extend the application of fotruer. 5-1.4 to non probate transfers. The form of the 2008 legislation was adopted substantially verbatim from § 2-804 of the 1990 Uniform Probate Code ("UPC"). However, one of the aspects of UPC § 2-804 which was not adopted in-2008 (by either this 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 Dept. decision in Estate of Lewis, 114 A.D.3d 203, 978 N.Y.S .2d 527 (2014); the Committee has considered the issue de novo, and recommends the adoption of a rebuttable presumption extending the revocatory effect of divorce to "relatives" of the decedent's former spouse, unless there is substantial evidence of contrary intent. (The proposal would allow CPLR 4519 evidence but would provide that such evidence would have to be supported by other evidence.) The Committee considered and rejected the adoption of UPC § 2-804 for the following reasons. Under UPC § 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 our recom- mendation, this approach would be retained for revocation of disposi- tions to divorced spouses but the presumed revocatory effect on disposi- tions 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. It is the Committee's judgment that this approach reflects the probable intent of most decedents in connection with dispositidns to "relatives" of divorced spouses, but leaves room for the varieties of human experi- ence which might include a contrary intention which was not memorialized in the decedent's will executed prior to the divorce, such as, for exam- ple, a continuing relationship with a step child. The Committee believes that such probable intent is more problematic than the probable inten- tion of such decedents with respect to dispositions to divorced spouses themselves. It should be noted that the Committee discussed at some length whether evidence admissible on the issue of revocatory intent should include evidence otherwise disqualified under CPLR 4519. Its recommendation to permit such evidence is based on its judgment that (a) the issue of dispositions to relatives of fowler spouses arises infre- quently, (b) that 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. The Committee therefore recommends that a new paragraph (g) be added to EP '1'L 5-1.4, to provide as follows: "(g) The revocatory effect of paragraph (a) shall be presumed to apply to a person in any relationship to the divorced individual that was based upon said marriage, including but not limited to step children, step grandchildren and parents in law, unless there is substantial evidence of the divorced individual's contrary intention. Testimony with regard to such intention shall not be disqualified under CPLR 4519 provided that such testimony is supported by other evidence." This measure would take effect immediately.   2019-20 LEGISLATIVE HISTORY: OCA 2019-32; (A7520 - Asm. Seawright) (Ref to Judiciary) (S6175 - S en Kaplan)   PASSED 6/6/19
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A07798 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          7798
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                      May 21, 2021
                                       ___________
 
        Introduced  by  M. of A. SEAWRIGHT -- (at request of the Office of Court
          Administration) -- read once and referred to the Committee on  Judici-
          ary
 
        AN  ACT  to amend the estates, powers and trusts law, in relation to the
          revocatory effect of divorce and relatives of a former spouse

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  Section  5-1.4  of  the estates, powers and trusts law is
     2  amended by adding a new paragraph (g) to read as follows:
     3    (g) The revocatory effect of paragraph (a) shall be presumed to  apply
     4  to  a  person  in  any  relationship to the divorced individual that was
     5  based upon said marriage, including but  not  limited  to  stepchildren,
     6  stepgrandchildren   and  parents-in-law,  unless  there  is  substantial
     7  evidence of the divorced individual's contrary intention. Testimony with
     8  regard to such intention shall  not  be  disqualified  under  CPLR  4519
     9  provided that such testimony is supported by other evidence.
    10    § 2. This act shall take effect immediately.
 
 
 
 
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD08874-01-1
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