Also known as: nonprobate property · non-probate properties · nonprobate properties · nonprobate assets
Written by attorneys · grounded in primary & secondary sources — see below
Property that passes at death by operation of law or contract rather than under a will or intestacy statute. Title transfers automatically to a surviving joint owner or designated beneficiary without court administration. A will has no effect on such assets.
Neil Nair and Noelle North held their condominium as tenants by the entirety during their marriage. While divorce proceedings remained pending, Neil executed a will purporting to devise his interest in the condo to his adult daughter Nadia Novak. Neil died before any decree or severance occurred. Title passed automatically to Noelle by survivorship, rendering the will ineffective as to the condo.
Nikhil Narayan named his wife Nancy Nelson as the payable-on-death beneficiary on his employer stock options. During divorce negotiations he executed a will attempting to leave the options to his nephew. Nikhil died while still married and before any change to the designation. The options passed directly to Nancy under the contract, bypassing the will and probate entirely.
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No. A will cannot dispose of nonprobate property held as tenants by the entirety. Title passes by operation of law to the surviving spouse when the tenancy remains intact at death.
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No. Filing for divorce does not automatically sever the tenancy. The form of ownership continues until a final decree or other affirmative act alters title.
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Equity will not impose a constructive trust absent wrongful conduct or unjust enrichment by the surviving owner. Mere pending divorce proceedings or allegations of emotional pressure do not meet this threshold.
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Some states include specified nonprobate assets in the augmented estate subject to the surviving spouse's elective share. The fraction is applied to the combined value of probate and designated nonprobate property.
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