New Statute: Revocation upon Divorce

Revocation-upon-divorce was originally an English common-law principle that grew out of the doctrine of revocation by implication. States began codifying and expanding the doctrine in the late 19th Century. By the early 20th Century, revocation-upon-divorce became its own common-law doctrine. Because of the disparity from state to state, the Uniform Law Commission’s 1990 version of the Uniform Probate Code (“UPC”) introduced a provision to “revoke upon divorce” both probate and non-probate transfers. The UPC has undergone a number of revisions since then.

Today, more than forty states have adopted some form of revocation upon divorce statute. With the recent passage of SB 2851, which codifies Miss. Code Ann. § 91-29-1 through § 91-29-9, Mississippi has become the latest to do so.

Pursuant to Miss. Code Ann. § 91-29-1, if, after the testator makes a will, the testator’s marriage is dissolved by divorce, annulled, or otherwise declared void, then unless the will expressly provides otherwise, all provisions in the will, including all fiduciary appointments, must be read as if the former spouse had failed to survive the testator, and all provisions in the will disposing of property to an irrevocable trust in which a former spouse is a beneficiary or is nominated to serve in a fiduciary capacity or that confers a general or special power of appointment on the former spouse must be read to instead dispose of the property to a trust the provisions of which are identical to the irrevocable trust. However, any provision in the irrevocable trust conferring a beneficial interest or a general or special power of appointment to the former spouse must be treated as if the former spouse had disclaimed the interest granted in the provision and any provision nominating the former spouse to serve in a fiduciary capacity will be treated as if the former spouse had died immediately before the dissolution of the marriage. In cases involving joint trusts, upon the death of one of the divorced settlors, the trustee must divide the trust into two shares with each share consisting of the respective former spouse’s property, and the subsequently disposed of as if such other former spouse had not survived them.

To learn more about Mississippi’s new revocation upon death statute, read Miss. Code Ann. § 91-29-1 through § 91-29-9 or SB 2851.

On a completely unrelated note … to learn more about how King Henry the Eighth dealt with his wives, check out this video: