N.Y. Estates, Powers & Trusts Law § 2-1.6: Disposition of property where a person dies within one hundred

§ 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.