75-2-804 - Definitions -- Revocation of probate and nonprobate transfers by divorce -- Effect of severance -- Revival -- Protection of payors, third parties, and bona fide purchasers -- Personal liabi
75-2-804. Definitions -- Revocation of probate and nonprobate transfers by divorce-- Effect of severance -- Revival -- Protection of payors, third parties, and bona fidepurchasers -- Personal liability of recipient -- No revocation by other changes ofcircumstances.
(1) As used in this section:
(a) "Disposition or appointment of property" includes a transfer of an item of property orany other benefit to a beneficiary designated in a governing instrument.
(b) "Divorce or annulment" means any divorce or annulment, or any dissolution ordeclaration of invalidity of a marriage, that would exclude the spouse as a surviving spousewithin the meaning of Section 75-2-802. A decree of separation that does not terminate the statusof husband and wife is not a divorce for purposes of this section.
(c) "Divorced individual" includes an individual whose marriage has been annulled.
(d) "Governing instrument" means a governing instrument executed by the divorcedindividual before the divorce or annulment of his marriage to his former spouse.
(e) "Relative of the divorced individual's former spouse" means an individual who isrelated to the divorced individual's former spouse by blood, adoption, or affinity and who, afterthe divorce or annulment, is not related to the divorced individual by blood, adoption, or affinity.
(f) "Revocable," with respect to a disposition, appointment, provision, or nomination,means one under which the divorced individual, at the time of the divorce or annulment, wasalone empowered, by law or under the governing instrument, to cancel the designation in favor ofhis former spouse or former spouse's relative, whether or not the divorced individual was thenempowered to designate himself in place of his former spouse or in place of his former spouse'srelative and whether or not the divorced individual then had the capacity to exercise the power.
(2) Except as provided by the express terms of a governing instrument, a court order, or acontract relating to the division of the marital estate made between the divorced individuals beforeor after the marriage, divorce, or annulment, the divorce or annulment of a marriage:
(a) revokes any revocable:
(i) disposition or appointment of property made by a divorced individual to his formerspouse in a governing instrument and any disposition or appointment created by law or in agoverning instrument to a relative of the divorced individual's former spouse;
(ii) provision in a governing instrument conferring a general or nongeneral power ofappointment on the divorced individual's former spouse or on a relative of the divorcedindividual's former spouse; and
(iii) nomination in a governing instrument, nominating a divorced individual's formerspouse or a relative of the divorced individual's former spouse to serve in any fiduciary orrepresentative capacity, including a personal representative, executor, trustee, conservator, agent,or guardian; and
(b) severs the interests of the former spouses in property held by them at the time of thedivorce or annulment as joint tenants with the right of survivorship, transforming the interests ofthe former spouses into tenancies in common.
(3) A severance under Subsection (2)(b) does not affect any third-party interest inproperty acquired for value and in good faith reliance on an apparent title by survivorship in thesurvivor of the former spouses unless a writing declaring the severance has been noted, registered,filed, or recorded in records appropriate to the kind and location of the property which are reliedupon, in the ordinary course of transactions involving such property, as evidence of ownership.
(4) Provisions of a governing instrument are given effect as if the former spouse andrelatives of the former spouse disclaimed all provisions revoked by this section or, in the case of arevoked nomination in a fiduciary or representative capacity, as if the former spouse and relativesof the former spouse died immediately before the divorce or annulment.
(5) Provisions revoked solely by this section are revived by the divorced individual'sremarriage to the former spouse or by a nullification of the divorce or annulment.
(6) No change of circumstances other than as described in this section and in Section75-2-803 effects a revocation.
(7) (a) A payor or other third party is not liable for having made a payment or transferredan item of property or any other benefit to a beneficiary designated in a governing instrumentaffected by a divorce, annulment, or remarriage, or for having taken any other action in good faithreliance on the validity of the governing instrument, before the payor or other third party receivedwritten notice of the divorce, annulment, or remarriage. A payor or other third party is liable fora payment made or other action taken after the payor or other third party received written noticeof a claimed forfeiture or revocation under this section.
(b) Written notice of the divorce, annulment, or remarriage under Subsection (7)(a) shallbe mailed to the payor's or other third party's main office or home by registered or certified mail,return receipt requested, or served upon the payor or other third party in the same manner as asummons in a civil action. Upon receipt of written notice of the divorce, annulment, orremarriage, a payor or other third party may pay any amount owed or transfer or deposit any itemof property held by it to or with the court having jurisdiction of the probate proceedings relatingto the decedent's estate or, if no proceedings have been commenced, to or with the court havingjurisdiction of probate proceedings relating to the decedent's estates located in the county of thedecedent's residence. The court shall hold the funds or item of property and, upon itsdetermination under this section, shall order disbursement or transfer in accordance with thedetermination. Payments, transfers, or deposits made to or with the court discharge the payor orother third party from all claims for the value of amounts paid to or items of property transferredto or deposited with the court.
(8) (a) A person who purchases property from a former spouse, relative of a formerspouse, or any other person for value and without notice, or who receives from a former spouse,relative of a former spouse, or any other person a payment or other item of property in partial orfull satisfaction of a legally enforceable obligation, is neither obligated under this section to returnthe payment, item of property, or benefit nor is liable under this section for the amount of thepayment or the value of the item of property or benefit. But a former spouse, relative of a formerspouse, or other person who, not for value, received a payment, item of property, or any otherbenefit to which that person is not entitled under this section is obligated to return the payment,item of property, or benefit, or is personally liable for the amount of the payment or the value ofthe item of property or benefit, to the person who is entitled to it under this section.
(b) If this section or any part of this section is preempted by federal law with respect to apayment, an item of property, or any other benefit covered by this section, a former spouse,relative of the former spouse, or any other person who, not for value, received a payment, item ofproperty, or any other benefit to which that person is not entitled under this section is obligated toreturn that payment, item of property, or benefit, or is personally liable for the amount of thepayment or the value of the item of property or benefit, to the person who would have beenentitled to it were this section or part of this section not preempted.
Repealed and Re-enacted by Chapter 39, 1998 General Session