Academic journal article The University of Memphis Law Review

The Revocation-upon-Divorce Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach

Academic journal article The University of Memphis Law Review

The Revocation-upon-Divorce Doctrine: Tennessee's Need to Adopt the Broader Uniform Probate Code Approach

Article excerpt

INTRODUCTION

Divorce is a life-changing event in many ways. At the forefront of a divorcing couple's mind are often issues of asset division, child custody, child support, and alimony. Couples frequently fail to appreciate the impact a divorce has on their individual estate plans until after one of the partners dies. Questions then arise, often from other family members, about whether the deceased partner would have intended for his or her former spouse to take certain assets, such as those apportioned by will, life insurance policy, retirement plan, trust, or other estate planning devices.

Recognizing the frequency with which divorced individuals fail to amend wills or financial plans and me concerns that often arise as a result of this failure, every state has enacted in some form the revocation-upon-divorce doctrine.1 In its original form, the doctrine provides that divorce revokes provisions in a will made in favor of the testator's ex-spouse. Over time, however, states have expanded the doctrine in response to the development of a multiple-marriage society and the more frequent use of will substitutes, such as life insurance policies, retirement plans, annuities, and trusts.

This movement towards expanding the revocation-upondivorce doctrine became evident with the 1990 revisions of the Uniform Probate Code ("UPC").2 This latest revision of the UPC's revocation-upon-divorce doctrine states that provisions in a will leaving assets to a former spouse and any relatives of the former spouse are revoked.3 Furthermore, the UPC applies the revocationupon-divorce doctrine to will substitutes, including life insurance, retirement benefits, annuities, and trusts.4

Although this expanded form of the revocation-upondivorce doctrine has been in existence for a number of years now, Tennessee has been slow to join the movement toward expanding the revocation-upon-divorce doctrine and instead retains the doctrine largely in its original form. Thus, the Tennessee statute revokes provisions in a will concerning a former spouse but, unlike the UPC, says nothing about provisions in a will regarding a former spouse's relatives.5 Also, unlike the UPC, Tennessee law fails to extend the revocation-upon-divorce doctrine to will substitutes such as life insurance policies, retirement plans, or annuities, though it does apply the doctrine to trusts.6

Undoubtedly, the drafters of the Tennessee Code have given great mought to how a typical divorced decedent who has failed to make changes to his estate plan would have intended his estate to be distributed. Since the Tennessee codification of the revocation-upon-divorce doctrine in 1985, however, it has become increasingly common for a person to have been divorced and/or to have had children with more than one person.7 In addition, more people have chosen to forego the strict formality of a will as a means of asset disposition in favor of will substitutes.8 Given this rapid growth of the multiple-marriage society and the increasing tendency to avoid the probate process through the use of will substitutes, the Tennessee statute is no longer a sufficient response to the problem of decedents who did not adjust their estate plans accordingly after a divorce.

Part I of this Note discusses the history of the revocationupon-divorce doctrine with respect to probate assets, specifically as applied to probate assets in Tennessee. Part I also compares the Tennessee provisions with those of the UPC and argues in favor of adding language to the Tennessee Code to revoke provisions in a testator's will in favor of a former spouse's relatives. Part II of this Note considers the application of the revocation-upon-divorce doctrine to will substitutes such as life insurance policies, retirement plans, annuities, and trusts under both Tennessee law and the UPC. This section also sets forth an argument to add language to the Tennessee Code which changes beneficiary designations from a former spouse or a former spouse's relatives to an alternate beneficiary or the decedent's estate when a decedent dies without having changed the beneficiary designation after his divorce. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed

Oops!

An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.