Whether a separation agreement entered into by depositor and beneficiary waives the beneficiary's right to payment of funds from a Totten trust.

No. A beneficiary may waive such rights, but the waiver must be explicit, voluntary, and made in good faith.

Plaintiff Rita Eredics entered into a formal separation agreement with Nick Nicholas, decedent, in 1995. The agreement provided that each party relinquishes any and all right to the estate of the other upon the latter's death. Nicholas died three years later, leaving his estate to his brother and sister. Plaintiff, named as beneficiary, sought to recover funds held in a Totten trust established prior to the will. The Supreme Court held that the separation agreement was not a revocation of the Totten trust. The Appellate Division and Court of Appeals affirmed.

The Court explicated that in Estates, Powers and Trusts Law, Section 7-5.2, three means are specified for a depositor's revocation of a Totten trust: withdrawal of the funds, an express direction in a will, or a qualifying writing filed with the bank. In this case, none of these means were employed. Here, the Court extrapolated this reasoning to beneficiaries, holding that a beneficiary may waive his/her right so long as the waiver is explicit, voluntary and made in good faith. Because the separation agreement in this case does not explicitly address the Totten trust, Plaintiff never waived her right to its benefits. Accordingly, the Court affirmed the order of the Appellate Division.