Senate Bill S3348

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

                                  3348

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                            February 17, 2011
                               ___________

Introduced  by  Sen. BONACIC -- 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
  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
DISCLOSURE OF THE INCOME, ASSETS, AND FINANCIAL OBLIGATIONS OF THE DECE-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD08412-01-1
              

S. 3348                             2

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.