Also known as: nonprobate estates · non-probate estate · non-probate estates · nonprobate property
Written by attorneys · grounded in primary & secondary sources — see below
Property that passes at death by operation of law or by beneficiary designation rather than under a will or through probate administration. A will has no effect on such property because the decedent holds no separate devisable interest at the moment of death.
Nicholas Nunez and his wife Nora Nash held their home as tenants by the entirety and a brokerage account as joint tenants with right of survivorship. While divorce proceedings were pending but before any decree or severance, Nicholas executed a will leaving both assets to his sister Naomi Norton. Nicholas died still married with the forms of ownership unchanged. Title to the home and account passed automatically to Nora by survivorship.
Nathaniel Newman and his wife Nadia Novak owned their condominium as tenants by the entirety and held employer stock options naming Nadia as payable-on-death beneficiary. During pending divorce negotiations Nathaniel executed a will devising both assets to his adult daughter. Nathaniel died before any decree or change in title. The condominium and options passed directly to Nadia outside probate.
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No. Filing for divorce does not sever the tenancy or destroy survivorship rights. The forms of ownership remain intact until a final decree or other legally effective act changes title. A will executed during pending proceedings therefore cannot redirect the assets.
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Equity will not impose a constructive trust absent wrongful conduct or unjust enrichment by the surviving spouse. Mere disappointment of a devisee's expectations or pending divorce negotiations do not meet this threshold.
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The surviving co-owner takes full title by operation of law at the instant of death. The property never enters the probate estate and cannot be distributed under the decedent's will.
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