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This entry was published on 2014-09-22
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SECTION 2-1.6
Disposition of property where a person dies within one hundred
Estates, Powers & Trusts (EPT) CHAPTER 17-B, ARTICLE 2, PART 1
§ 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
property or the devolution of property depends upon an individual's
survivorship 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
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
individual, 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-sharing, retirement, or similar benefit plan, instrument creating
or exercising a power of appointment or a power of attorney, or a
dispositive, appointive, or nominative instrument of any similar type.