S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  2038

                       2009-2010 Regular Sessions

                            I N  S E N A T E

                            February 11, 2009
                               ___________

Introduced  by  Sen.  DeFRANCISCO -- read twice and ordered printed, and
  when printed to be committed to the Committee on Judiciary

AN ACT to amend the estates, powers and trusts law, in relation  to  the
  disposition  of property when persons die simultaneously and to repeal
  section 2-1.6 of such law relating thereto

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section  1.  Section  2-1.6  of  the estates, powers and trusts law is
REPEALED and a new section 2-1.6 is added to read as follows:
S 2-1.6 DISPOSITION OF PROPERTY WHERE A PERSON DIES WITHIN  ONE  HUNDRED
          TWENTY HOURS OF ANOTHER PERSON OR ANY OTHER EVENT
  (A) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION:
  (1)  WHERE, UNDER ARTICLES 4 AND 5 OF THIS CHAPTER, THE TITLE TO PROP-
ERTY OR THE DEVOLUTION OF PROPERTY DEPENDS  UPON AN INDIVIDUAL'S  SURVI-
VORSHIP  OF  THE  DEATH  OF ANOTHER INDIVIDUAL, AN INDIVIDUAL WHO IS NOT
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE TO HAVE SURVIVED THE  OTHER
INDIVIDUAL BY ONE HUNDRED TWENTY HOURS IS DEEMED TO HAVE PREDECEASED THE
OTHER INDIVIDUAL.
  (2) FOR PURPOSES OF A PROVISION OF A GOVERNING INSTRUMENT THAT RELATES
TO  AN  INDIVIDUAL  SURVIVING  AN  EVENT, INCLUDING THE DEATH OF ANOTHER
INDIVIDUAL, AN INDIVIDUAL WHO IS NOT ESTABLISHED BY CLEAR AND CONVINCING
EVIDENCE TO HAVE SURVIVED THE EVENT  BY  ONE  HUNDRED  TWENTY  HOURS  IS
DEEMED TO HAVE PREDECEASED THE EVENT.
  (3)  WHERE  A DISPOSITION OF PROPERTY UNDER A GOVERNING INSTRUMENT (I)
DEPENDS UPON THE TIME OF DEATH OF TWO OR MORE  BENEFICIARIES  DESIGNATED
TO  TAKE  ALTERNATIVELY  BY  REASON OF SURVIVING AN EVENT, INCLUDING THE
DEATH OF ANOTHER INDIVIDUAL, AND (II) IT IS NOT ESTABLISHED BY CLEAR AND
CONVINCING EVIDENCE THAT SUCH BENEFICIARIES HAVE SURVIVED THE  EVENT  BY
ONE HUNDRED TWENTY HOURS, THE PROPERTY THUS DISPOSED OF SHALL BE DIVIDED
INTO  AS  MANY EQUAL PORTIONS AS THERE ARE ALTERNATIVE BENEFICIARIES AND
SUCH PORTIONS SHALL BE DISTRIBUTED RESPECTIVELY TO THOSE WHO WOULD  HAVE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD01594-01-9
              

S. 2038                             2

TAKEN  THE  WHOLE  PROPERTY IN THE EVENT THAT THE DESIGNATED BENEFICIARY
THROUGH WHOM THEY TAKE HAD SURVIVED.
  (4)  WHERE IT IS NOT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE THAT
ONE OF TWO CO-OWNERS WITH  RIGHT  OF  SURVIVORSHIP  SURVIVED  THE  OTHER
CO-OWNER BY ONE HUNDRED TWENTY HOURS, ONE-HALF OF THE PROPERTY PASSES AS
IF  ONE  HAD SURVIVED BY ONE HUNDRED TWENTY HOURS AND ONE-HALF AS IF THE
OTHER HAD SURVIVED BY ONE HUNDRED TWENTY HOURS.   WHERE THERE  ARE  MORE
THAN  TWO  CO-OWNERS  AND  IT IS NOT ESTABLISHED BY CLEAR AND CONVINCING
EVIDENCE THAT AT LEAST ONE OF THEM SURVIVED THE OTHERS  BY  ONE  HUNDRED
TWENTY  HOURS,  THE  PROPERTY PASSES IN THE PROPORTION THAT ONE BEARS TO
THE WHOLE NUMBER OF CO-OWNERS.
  (B) THE SURVIVAL REQUIREMENTS OF PARAGRAPH (A) OF THIS  SECTION  SHALL
NOT APPLY IF:
  (1) THE GOVERNING INSTRUMENT CONTAINS LANGUAGE DEALING EXPLICITLY WITH
SIMULTANEOUS  DEATHS OR DEATHS IN A COMMON DISASTER AND THAT LANGUAGE IS
OPERABLE UNDER THE FACTS OF THE CASE.
  (2) THE GOVERNING INSTRUMENT EXPRESSLY INDICATES THAT AN INDIVIDUAL IS
NOT REQUIRED TO SURVIVE AN EVENT, INCLUDING THE DEATH OF  ANOTHER  INDI-
VIDUAL,  BY ANY SPECIFIED PERIOD OR EXPRESSLY REQUIRES THE INDIVIDUAL TO
SURVIVE THE EVENT FOR A SPECIFIED PERIOD. HOWEVER, SURVIVAL OF THE EVENT
OR THE SPECIFIED PERIOD MUST BE  ESTABLISHED  BY  CLEAR  AND  CONVINCING
EVIDENCE.
  (3)  THE  IMPOSITION  OF  A  ONE  HUNDRED  TWENTY-HOUR  REQUIREMENT OF
SURVIVAL WOULD CAUSE  A  NONVESTED  PROPERTY  INTEREST  OR  A  POWER  OF
APPOINTMENT  TO BE INVALID UNDER SECTION 9-1.1 OF THIS CHAPTER. HOWEVER,
SURVIVAL MUST BE ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.
  (4) THE APPLICATION  OF  A  ONE  HUNDRED  TWENTY-HOUR  REQUIREMENT  OF
SURVIVAL TO MULTIPLE GOVERNING INSTRUMENTS WOULD RESULT IN AN UNINTENDED
FAILURE  OR  DUPLICATION  OF  A  DISPOSITION.  HOWEVER, SURVIVAL MUST BE
ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE.
  (5) ITS APPLICATION WOULD RESULT IN A TAKING OF THE  INTESTATE  ESTATE
BY THE STATE.
  (6) THE SURVIVING SPOUSE EXERCISED THE RIGHT OF ELECTION UNDER SECTION
5-1.1-A  OF  THIS  CHAPTER,  BUT DIED LESS THAN ONE HUNDRED TWENTY HOURS
AFTER THE DEATH OF THE DECEASED SPOUSE.
  (C) FOR PURPOSES OF THIS SECTION, "GOVERNING INSTRUMENT" MEANS A DEED,
WILL, TRUST, INSURANCE OR ANNUITY POLICY, BANK ACCOUNT  IN  TRUST  FORM,
SECURITY  REGISTRATION  IN BENEFICIARY FORM (TOD), PENSION, PROFIT-SHAR-
ING, RETIREMENT, OR SIMILAR BENEFIT PLAN, INSTRUMENT CREATING  OR  EXER-
CISING  A POWER OF APPOINTMENT OR A POWER OF ATTORNEY, OR A DISPOSITIVE,
APPOINTIVE, OR NOMINATIVE INSTRUMENT OF ANY SIMILAR TYPE.
  S 2. This act shall take effect immediately, provided that:
  (1) any action or proceeding commenced prior to the effective date  of
this  act  shall  not  be  impaired by this act. If a right is acquired,
extinguished, or barred upon the expiration of a  prescribed  period  of
time  that has commenced pursuant to the provisions of any statute prior
to the effective date of this act, such provisions shall remain in force
with respect to such right; and
  (2) any rule of construction or presumption provided by this act shall
apply to governing instruments executed, including bank accounts opened,
before the effective date of this act unless there is a clear indication
of a contrary intent.