senate Bill S3348

2011-2012 Legislative Session

Requires prior disclosure of income, assets, financial obligations of decedent to enforce surviving spouse's waiver of right of election; waives dead man's statute

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Archive: Last Bill Status - In Committee


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed/Vetoed by Governor

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Actions

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Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Jan 04, 2012 referred to judiciary
Jun 24, 2011 committed to rules
Jun 06, 2011 advanced to third reading
Jun 02, 2011 2nd report cal.
Jun 01, 2011 1st report cal.911
Feb 17, 2011 referred to judiciary

Votes

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Jun 1, 2011 - Judiciary committee Vote

S3348
22
0
committee
22
Aye
0
Nay
0
Aye with Reservations
0
Absent
1
Excused
0
Abstained
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S3348 - Bill Details

See Assembly Version of this Bill:
A4693
Current Committee:
Law Section:
Estates, Powers and Trusts Law
Laws Affected:
Amd ยง5-1.1-A, EPT L
Versions Introduced in 2009-2010 Legislative Session:
S2971, A2873

S3348 - Bill Texts

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Requires fair and reasonable disclosure of income, assets and financial obligations of decedent for surviving spouse's waiver of right of election to be enforceable and renders inapplicable the "dead man's statute" for purposes of accepting relevant evidence in this regard and in regard to Totten trust and joint bank account transactions.

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BILL NUMBER:S3348

TITLE OF BILL:
An act
to amend the estates, powers and trusts law, in relation to the waiver
of a right of election by a surviving spouse

PURPOSE OF BILL:
The bill would require that a spouse be given a fair and reasonable
disclosure of the financial situation of the other spouse before
waiving a right of election against the other spouse's estate.

SUMMARY OF PROVISIONS OF BILL:
The bill requires that the waiver of a right of election may not be
enforced against a surviving spouse who proves that the decedent did
not provide such spouse with a "fair and reasonable disclosure of the
income, assets, and financial obligations" of the decedent. This
requirement would not apply, however, if the surviving spouse had
specifically waived such disclosure or if such spouse had independent
knowledge of the decedent's financial situation.

The bill also provides that in determining whether the surviving
spouse had been provided with, or waived, financial disclosure, or
had independent knowledge of the decedent's financial situation, the
court is not bound by the limitations of the dead person's statute.
Subparagraph 2 of paragraph (b) of section 5-1.1-A of the EPTL is
amended so its language that overrides the dead person's statute is
consistent with the new language and clear as to its intent.

Finally, under the bill the surviving spouse will continue to have
available any common law defense such as fraud, involuntariness and
unconscionability.

JUSTIFICATION:
In 1992 the Legislature enacted EPTL 5-1.1-A to improve and render
more equitable the right of a surviving spouse to exercise a right of
election against the estate of a decedent spouse. This enactment gave
added significance to spousal agreements, whether made before or
after marriage, especially those containing a waiver of the new
5-1.1-A elective right.

Under current law a waiver will not be effective if unconscionable,
involuntary, or the product of fraud or overreaching by the decedent
spouse. Current law does not, however, require financial disclosure
as a condition to the enforceability of such a waiver. In changing
the law to require such disclosure, this bill would render the law of
New York consistent with the common law requirements of fundamental
fairness prevailing in other states and with the three uniform acts
on the subject (the Uniform Probate Code, the Uniform Premarital
Agreement Act, and the Uniform Marital Property Act.) At the same
time, the bill would preserve to the surviving spouse the right to
assert existing common law defenses such as fraud, involuntariness,
and unconscionability.

LEGISLATIVE HISTORY:
2009-10: A.2873 - Veto Memo


6
2007-08: A.3060 - Passed Assembly
2006: A.5855 - Passed Assembly
2005: A.5855 - Passed Assembly
2003-04: A.4773 - Passed Assembly
2001-02: A.4440 - Passed Assembly
1999-00: A.3599 - Assembly Calendar
1997-98: A.5586 - Passed Assembly
1996: A.6114-A - Passed Assembly
1995: A.6114-A - Rules Committee

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect on the 1st of September next succeeding
the date on which it shall have become a law and shall apply to
waivers executed on or after its effective date.

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                    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.

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