(1) Requirement of survival by one hundred twenty hours under probate code. For the
purposes of this code, except as provided in subsection (4) of this section, an
individual who is not established by clear and convincing evidence to have survived
an event, including the death of another individual, by one hundred twenty hours is
deemed to have predeceased the event.
(2) Requirement of survival by one hundred twenty hours under other
governing instrument. Except as provided in subsection (4) of this section, 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) Co-owners with right of survivorship; requirement of survival by one
hundred twenty hours. Except as provided in subsection (4) of this section, if (i) 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, and (ii) 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.
For the purposes of this subsection (3), co-owners with right of survivorship
includes joint tenants, tenants by the entireties, and other co-owners of property or
accounts held under circumstances that entitles one or more to the whole of the
property or account on the death of one or more of the others.
(4) Exceptions. Survival by one hundred twenty hours is not required if:
(a) The governing instrument contains language dealing explicitly with
simultaneous deaths or deaths in a common disaster and if that language is
operable under the facts of the case;
(b) 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 by a
specified period; but survival of the event or the specified period shall be
established by clear and convincing evidence;
(c) The imposition of a one-hundred-twenty-hour requirement of survival
would cause a nonvested property interest or a power of appointment to fail to
qualify for validity under section 15-11-1102 (1)(a), (2)(a), or (3)(a) or section 15-11-1102.5 (1)(b)(I), (1)(b)(II), (1)(b)(III), (2)(b)(I)(A), (2)(b)(II)(A), or (2)(b)(III)(A), or to become
invalid under section 15-11-1102 (1)(b), (2)(b), or (3)(b) or section 15-11-1102.5 (1)(b)(I),
(1)(b)(II), or (1)(b)(III); but survival shall be established by clear and convincing
evidence; or
(d) 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; but survival shall be established by clear and convincing evidence.
(5) Protection of payers and other third parties. (a) A payer or other third
party is not liable for having made a payment or transferred an item of property or
any other benefit to a beneficiary designated in a governing instrument who, under
this section, is not entitled to the payment or item of property, or for having taken
any other action in reliance on the beneficiary's apparent entitlement under the
terms of the governing instrument, before the payer or other third party received
written notice as described in paragraph (b) of this subsection (5). A payer or other
third party shall have no duty or obligation to inquire as to the application of the
one-hundred-twenty-hour survival or to seek any evidence with respect to any such
survival. A payer or other third party is only liable for actions taken two or more
business days after the payer or other third party has actual receipt of such written
notice. Any form or service of notice other than that described in paragraph (b) of
this subsection (5) shall not be sufficient to impose liability on a payer or other third
party for actions taken pursuant to the governing instrument.
(b) The written notice shall indicate the name of the decedent, the name of
the person asserting an interest, the nature of the payment or item of property or
other benefit, and a statement that the beneficiary designated in the governing
instrument failed to survive the decedent by one hundred twenty hours. The written
notice shall be mailed to the payer's or other third party's main office or home by
registered or certified mail, return receipt requested, or served upon the payer or
other third party in the same manner as a summons in a civil action. Notice to a
sales representative of the payer or other third party shall not constitute notice to
the payer or other third party.
(c) Upon receipt of the written notice described in paragraph (b) of this
subsection (5), a payer or other third party may pay to the court any amount owed,
or transfer to or deposit with the court any item of property held by it. The
availability of such actions under this section shall not prevent the payer or other
third party from taking any other action authorized by law or the governing
instrument. The court is the court having jurisdiction of the probate proceedings
relating to the decedent's estate, or if no proceedings have been commenced, the
court having jurisdiction of probate proceedings relating to decedents' estates
located in the county of the decedent's residence. If no probate proceedings have
been commenced, the payer or other third party shall file with the court a copy of
the written notice received by the payer or other third party, with the payment of
funds or transfer or deposit of property. The court shall not charge a filing fee to
the payer or other third party for the payment to the court of amounts owed or
transfer to or deposit with the court of any item of property, even if no probate
proceedings have been commenced before such payment, transfer, or deposit.
Payment of amounts to the court or transfer to or deposit with the court of any item
of property pursuant to this section by the payer or other third party discharges the
payer or other third party from all claims under the governing instrument or
applicable law for the value of amounts paid to the court or items of property
transferred to or deposited with the court.
(d) The court shall hold the funds or item of property and, upon its
determination under this section, shall order disbursement in accordance with the
determination. A filing fee, if any, shall be charged upon disbursement either to the
recipient or against the funds or property on deposit with the court, in the discretion
of the court.
(e) Upon petition to the court by the beneficiary designated in a governing
instrument, the court may order that all or part of the property be paid to the
beneficiary in an amount and subject to conditions consistent with this section.
(6) Protection of bona fide purchasers; personal liability of recipient. (a) A
person who purchases property for value and without notice or who receives a
payment 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 is liable under this section for the amount
of the payment or the value of the item of property or benefit. However, a person
who, not for value, receives a payment, item of property, or any other benefit 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 of the 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
(other than the federal Employee Retirement Income Security Act of 1974, as
amended) with respect to a payment, an item of property, or any other benefit
covered by this section, a person who, not for value, receives the payment, item of
property, or any other benefit 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 of the item of property or benefit,
to the person who would have been entitled to it were this section or part of this
section not preempted.