75-2-702 - Requirement of survival by 120 hours -- Under probate code or governing instrument -- Co-owners -- Exceptions -- Protection of payors, third parties, and bona fide purchasers -- Personal li
75-2-702. Requirement of survival by 120 hours -- Under probate code orgoverning instrument -- Co-owners -- Exceptions -- Protection of payors, third parties, andbona fide purchasers -- Personal liability of recipient.
(1) Except as provided in Subsection (4), an individual who is not established by clearand convincing evidence to have survived an event, including the death of another individual, by120 hours is considered to have predeceased the event.
(2) Except as provided in Subsection (4), for purposes of a provision of a governinginstrument that relates to an individual surviving an event, including the death of anotherindividual, an individual who is not established by clear and convincing evidence to havesurvived the event by 120 hours is considered to have predeceased the event.
(3) Except as provided in Subsection (4), if:
(a) it is not established by clear and convincing evidence that one of two co-owners withright of survivorship survived the other co-owner by 120 hours, 1/2 of the property passes as ifone had survived by 120 hours and 1/2 as if the other had survived by 120 hours; and
(b) there are more than two co-owners and it is not established by clear and convincingevidence that at least one of them survived the others by 120 hours, the property passes in theproportion that one bears to the whole number of co-owners. For the purposes of this subsection,"co-owners with right of survivorship" includes joint tenants, tenants by the entireties, and otherco-owners of property or accounts held under circumstances that entitles one or more to thewhole of the property or account on the death of the other or others.
(4) Survival by 120 hours is not required if:
(a) the governing instrument contains language dealing explicitly with simultaneousdeaths or deaths in a common disaster and that language is operable under the facts of the case;
(b) the governing instrument expressly indicates that an individual is not required tosurvive an event, including the death of another individual, by any specified period or expresslyrequires the individual to survive the event by a specified period; but survival of the event or thespecified period shall be established by clear and convincing evidence;
(c) the imposition of a 120-hour requirement of survival would cause a nonvestedproperty interest or a power of appointment to fail to qualify for validity under Section 75-2-1203or to become invalid under Section 75-2-1203; but survival shall be established by clear andconvincing evidence; or
(d) the application of a 120-hour requirement of survival to multiple governinginstruments would result in an unintended failure or duplication of a disposition; but survivalshall be established by clear and convincing evidence.
(5) (a) A payor or other third party is not liable for having made a payment or transferredan item of property or any other benefit to a beneficiary designated in a governing instrumentwho, under this section, is not entitled to the payment or item of property, or for having taken anyother action in good faith reliance on the beneficiary's apparent entitlement under the terms of thegoverning instrument, before the payor or other third party received written notice of a claimedlack of entitlement under this section. A payor or other third party is liable for a payment madeor other action taken after the payor or other third party received written notice of a claimed lackof entitlement under this section.
(b) Written notice of a claimed lack of entitlement under Subsection (5)(a) shall bemailed to the payor's or other third party's main office or home by registered or certified mail,return receipt requested, or served upon the payor or other third party in the same manner as a
summons in a civil action. Upon receipt of written notice of a claimed lack of entitlement underthis section, a payor or other third party may pay any amount owed or transfer or deposit any itemof property held by it to or with the court having jurisdiction of the probate proceedings relatingto the decedent's estate, or if no proceedings have been commenced, to or with the court havingjurisdiction of probate proceedings relating to the decedent's estates located in the county of thedecedent's residence. The court shall hold the funds or item of property and, upon itsdetermination under this section, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third partyfrom all claims for the value of amounts paid to or items of property transferred to or depositedwith the court.
(6) (a) A person who purchases property for value and without notice, or who receives apayment or other item of property in partial or full satisfaction of a legally enforceable obligation,is neither obligated under this section to return the payment, item of property, or benefit nor isliable under this section for the amount of the payment or the value of the item of property orbenefit. But a person who, not for value, receives a payment, item of property, or any otherbenefit to which the person is not entitled under this section is obligated to return the payment,item of property, or benefit, or is personally liable for the amount of the payment or the value ofthe item of property or benefit, to the person who is entitled to it under this section.
(b) If this section or any part of this section is preempted by federal law with respect to apayment, an item of property, or any other benefit covered by this section, a person who, not forvalue, receives the payment, item of property, or any other benefit to which the person is notentitled under this section is obligated to return the payment, item of property, or benefit, or ispersonally liable for the amount of the payment or the value of the item of property or benefit, tothe person who would have been entitled to it were this section or part of this section notpreempted.
Amended by Chapter 301, 2003 General Session