S T A T E   O F   N E W   Y O R K
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                                  2873

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 21, 2009
                               ___________

Introduced  by  M.  of  A.  WEINSTEIN  -- Multi-Sponsored by -- M. of A.
  CLARK, GLICK, JAFFEE, JOHN, KAVANAGH -- read once and referred to  the
  Committee on Judiciary

AN  ACT  to amend the estates, powers and trusts law, in relation to the
  waiver of a right of election by a surviving spouse

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

  Section 1. Subparagraph  2  of paragraph (b) of section 5-1.1-A of the
estates, powers and trusts law, as amended by chapter 515 of the laws of
1993, is amended to read as follows:
  (2) Transactions described in clause (D) or SUBCLAUSE  (I)  OF  CLAUSE
(E)  [(i)]  OF SUBPARAGRAPH (1) shall be treated as testamentary substi-
tutes in the proportion that the funds on deposit were the  property  of
the decedent immediately before the deposit or the consideration for the
property  described in SUBCLAUSE (I) OF clause (E) [(i)] OF SUBPARAGRAPH
(1) was furnished by the decedent. The surviving spouse shall  have  the
burden  of  establishing  the proportion of the decedent's contribution;
provided, however, that where the surviving spouse is the other party to
the transaction, it will be conclusively presumed that the proportion of
the decedent's contribution is one-half. For the purpose of this subpar-
agraph, SECTION FORTY-FIVE HUNDRED NINETEEN OF THE  CIVIL  PRACTICE  LAW
AND  RULES SHALL NOT APPLY, AND the court may accept such evidence as is
relevant and  competent,  whether  or  not  [the  person  offering  such
evidence would otherwise be competent to testify] SUCH EVIDENCE WOULD BE
EXCLUDED  PURSUANT  TO  SECTION FORTY-FIVE HUNDRED NINETEEN OF THE CIVIL
PRACTICE LAW AND RULES.
  S 2. Paragraph (e) of section  5-1.1-A  of  the  estates,  powers  and
trusts law is amended by adding a new subparagraph 5 to read as follows:
  (5)  A  WAIVER  OR  RELEASE  OF  RIGHT  OF ELECTION IS NOT ENFORCEABLE
AGAINST THE SURVIVING SPOUSE IF SUCH SPOUSE PROVES, BY  A  PREPONDERANCE
OF THE EVIDENCE, THAT SUCH SPOUSE WAS NOT PROVIDED A FAIR AND REASONABLE

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD06358-01-9
              

A. 2873                             2

DISCLOSURE OF THE INCOME, ASSETS, AND FINANCIAL OBLIGATIONS OF THE DECE-
DENT PRIOR TO THE EXECUTION OF THE WAIVER OR RELEASE, PROVIDED, HOWEVER,
THAT  THIS  SUBPARAGRAPH  SHALL  NOT  APPLY  IF  IT APPEARS THAT (I) THE
SURVIVING  SPOUSE  VOLUNTARILY  AND EXPRESSLY WAIVED OR RELEASED, IN THE
MANNER PROVIDED IN SUBPARAGRAPH (2), ANY RIGHT TO DISCLOSURE BEYOND  THE
DISCLOSURE PROVIDED, OR (II) SUCH SPOUSE HAD SUFFICIENT KNOWLEDGE OF THE
INCOME,  ASSETS  AND  FINANCIAL OBLIGATIONS OF THE DECEDENT PRIOR TO THE
EXECUTION OF THE WAIVER OR RELEASE. FOR THE PURPOSES  OF  THIS  SUBPARA-
GRAPH, SECTION FORTY-FIVE HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND
RULES  SHALL  NOT  APPLY,  AND  THE COURT MAY ACCEPT SUCH EVIDENCE AS IS
RELEVANT AND OTHERWISE COMPETENT, WHETHER OR NOT SUCH EVIDENCE WOULD  BE
EXCLUDED  PURSUANT  TO  SECTION FORTY-FIVE HUNDRED NINETEEN OF THE CIVIL
PRACTICE LAW  AND  RULES.  THIS  SUBPARAGRAPH  SHALL  NOT  PRECLUDE  THE
ASSERTION OF ANY COMMON LAW DEFENSES BY SUCH SURVIVING SPOUSE.
  S 3. This  act  shall  take  effect  on  the  first  of September next
succeeding the date on which it  shall  have  become  a  law,  provided,
however  that  section  two  of  this act shall apply only to waivers or
releases, of a spouse's right of election, executed  on  or  after  such
effective date.