§ 30.1-09.1-02 — (2-702) Requirement of survival by one hundred twenty hours

North Dakota § 30.1-09.1-02

• Jurisdiction: North Dakota
• Title 30.1: Uniform Probate Code
• Ch. 30.1-09.1: Rules of Construction of Governing Instrument

Text

1. For the purposes of this title, except as provided in subsection 4, 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. Except as provided in subsection 4, 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. Except as provided in subsection 4, if 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 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 purposes of this subsection, the term "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 the other or others.
4. Survival by one hundred twenty hours is not required if:
a. The governing instrument contains some language dealing explicitly with
simultaneous deaths 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 to
survive an event, including the death of another individual, by any specific period
or expressly requires the individual to survive the event by a specific period, but
survival of the event or the specified period must be established by clear and
convincing evidence;
c. 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 subdivision a of subsection 1, subdivision a of subsection 2, or
subdivision a of subsection 3 of section 47-02-27.1, or to become invalid under
subdivision b of subsection 1, subdivision b of subsection 2, or subdivision b of
subsection 3 of section 47-02-27.1, but survival must 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 must be established by clear and convincing evidence.
5. 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 good-faith reliance on the
beneficiary's apparent entitlement under the terms of the governing instrument,
before the payer or other third party received written notice of a claimed lack of
entitlement under this section. A payer or other third party is liable for a payment

made or other action taken after the payer or other third party received written
notice of a claimed lack of entitlement under this section.
b. Written notice of a claimed lack of entitlement under subdivision a must be mailed
to the payer's or other third party's main office or home by registered mail or
served upon the payer 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 under
this section, a payer or other third party may pay any amount owed or transfer or
deposit any item of property held by it to or with the court having jurisdiction of the
probate proceedings relating to the decedent's estate, or if no proceedings have
been commenced, to or with the court having jurisdiction of probate proceedings
relating to decedents' estates located in the county of the decedent's residence.
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. Payments, transfers, or deposits made to or with the court
discharge the payer or other third party from all claims for the value of amounts
paid to or items of property transferred to or deposited with the court.
6. 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. But 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 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.