SECTION 2-802. Uniform Probate Code
EFFECT OF DIVORCE, ANNULMENT, AND DECREE OF SEPARATION.
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he [or she] is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of [Parts] 1, 2, 3 and 4 of this [article], and of Section 3-203, a surviving spouse does not include:
(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
Comment
EFFECT OF DIVORCE, ANNULMENT, AND DECREE OF SEPARATION.
(a) An individual who is divorced from the decedent or whose marriage to the decedent has been annulled is not a surviving spouse unless, by virtue of a subsequent marriage, he [or she] is married to the decedent at the time of death. A decree of separation that does not terminate the status of husband and wife is not a divorce for purposes of this section.
(b) For purposes of [Parts] 1, 2, 3 and 4 of this [article], and of Section 3-203, a surviving spouse does not include:
(1) an individual who obtains or consents to a final decree or judgment of divorce from the decedent or an annulment of their marriage, which decree or judgment is not recognized as valid in this state, unless subsequently they participate in a marriage ceremony purporting to marry each to the other or live together as husband and wife;
(2) an individual who, following an invalid decree or judgment of divorce or annulment obtained by the decedent, participates in a marriage ceremony with a third individual; or
(3) an individual who was a party to a valid proceeding concluded by an order purporting to terminate all marital property rights.
Comment
226
Clarifying Revision. The only substantive revision of this section is a clarifying revision
of subsection (b)(2), making it clear that this subsection refers to an invalid decree of divorce or
annulment.
Rationale. Although some existing statutes bar the surviving spouse for desertion or adultery, the present section requires some definitive legal act to bar the surviving spouse. Normally, this is divorce. Subsection (a) states an obvious proposition, but subsection (b) deals with the difficult problem of invalid divorce or annulment, which is particularly frequent as to foreign divorce decrees but may arise as to a local decree where there is some defect in jurisdiction; the basic principle underlying these provisions is estoppel against the surviving spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not affected; but if the separation is accompanied by a complete property settlement, this may operate under Section 2-213 as a waiver or renunciation of benefits under a prior will and by intestate succession.
Cross Reference. See Section 2-804 for similar provisions relating to the effect of divorce to revoke devises and other revocable provisions to a former spouse.
Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 159 (Supp. 1992).
Rationale. Although some existing statutes bar the surviving spouse for desertion or adultery, the present section requires some definitive legal act to bar the surviving spouse. Normally, this is divorce. Subsection (a) states an obvious proposition, but subsection (b) deals with the difficult problem of invalid divorce or annulment, which is particularly frequent as to foreign divorce decrees but may arise as to a local decree where there is some defect in jurisdiction; the basic principle underlying these provisions is estoppel against the surviving spouse. Where there is only a legal separation, rather than a divorce, succession patterns are not affected; but if the separation is accompanied by a complete property settlement, this may operate under Section 2-213 as a waiver or renunciation of benefits under a prior will and by intestate succession.
Cross Reference. See Section 2-804 for similar provisions relating to the effect of divorce to revoke devises and other revocable provisions to a former spouse.
Historical Note. This Comment was revised in 1993. For the prior version, see 8 U.L.A. 159 (Supp. 1992).
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