29A-2-101      Intestate estate.
29A-2-102      Share of the spouse.
29A-2-103      Shares of heirs other than surviving spouse.
29A-2-104      Requirement that heir survive decedent for 120 hours.
29A-2-105      No taker.
29A-2-106      Representation.
29A-2-107      Kindred of half blood.
29A-2-108      Afterborn heirs.
29A-2-109      Advancements.
29A-2-110      Debts to decedent.
29A-2-111      Alienage.
29A-2-112      Dower and curtesy abolished.
29A-2-113      Individual related to decedent through two lines.
29A-2-114      Parent and child relationships.

29A-2-101. Intestate estate.

(a) Any part of a decedent's estate not effectively disposed of by will or otherwise passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will.

(b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or all members of that class had disclaimed their intestate shares.

Source: SL 1995, ch 167, § 2-101.

29A-2-102. Share of the spouse.

The intestate share of a decedent's surviving spouse is:

(1)    The entire intestate estate if:

(i)    No descendant of the decedent survives the decedent; or

(ii)    All of the decedent's surviving descendants are also descendants of the surviving spouse;

(2)    The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.

Source: SL 1995, ch 167, § 2-102.

29A-2-103. Shares of heirs other than surviving spouse.

Any part of the intestate estate not passing to the decedent's surviving spouse under § 29A-2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

(1)    To the decedent's descendants by representation;

(2)    If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;

(3)    If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;

(4)    If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or by representation to the descendants of the decedent's paternal grandparents or either of them if both are deceased; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

Source: SL 1995, ch 167, § 2-103.

29A-2-104. Requirement that heir survive decedent for 120 hours.

An individual who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. This section is not to be applied if its application would result in a taking of intestate estate by the state under § 29A-2-105.

Source: SL 1995, ch 167, § 2-104.

29A-2-105. No taker.

If there is no taker under the provisions of this chapter, the intestate estate passes to the State of South Dakota as provided in § 29A-3-914.

Source: SL 1995, ch 167, § 2-105.

29A-2-106. Representation.

(a) If, under § 29A-2-103(1), a decedent's intestate share or a part thereof passes "by representation" to the decedent's descendants, the estate or part thereof is divided into as many equal shares as there are (i) surviving children of the decedent, if any, and (ii) children of the decedent who failed to survive the decedent but who left descendants who survive the decedent. Each surviving child is allocated one share. The share of each child who failed to survive the decedent but who left descendants who survive the decedent is divided in the same manner, with subdivision repeating at each succeeding generation until the share is fully allocated among surviving descendants.

(b) If, under § 29A-2-103(3) or (4), a decedent's intestate estate or a part thereof passes "by representation" to the descendants of the decedent's parents or either of them or to the descendants of the decedent's paternal or maternal grandparents or either of them, the estate or part thereof is divided into as many equal shares as there are (i) children of the designated ancestor or ancestors who survived the decedent, if any, and (ii) children of the designated ancestor or ancestors who failed to survive the decedent but who left descendants who survive the decedent. Each surviving child is allocated one share. The share of each child who failed to survive the decedent but who left descendants who survive the decedent is divided in the same manner, with subdivision repeating at each succeeding generation until the share is fully allocated among surviving descendants.

Source: SL 1995, ch 167, § 2-106.

29A-2-107. Kindred of half blood.

Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.

Source: SL 1995, ch 167, § 2-107.

29A-2-108. Afterborn heirs.

An individual is treated as living at that time if the individual was conceived prior to a decedent's death, born within ten months of a decedent's death, and survived one hundred twenty hours or more after birth.

Source: SL 1995, ch 167, § 2-108; SL 2007, ch 247, § 3.

29A-2-109. Advancements.

(a) If an individual dies intestate as to all or a portion of that individual's estate, property the decedent gave during the decedent's lifetime to an individual who, at the decedent's death, is an heir is treated as an advancement against the heir's intestate share only if (i) the decedent declared in a writing or the heir acknowledged in writing that the gift is an advancement or (ii) the decedent's writing or the heir's written acknowledgment otherwise indicates that the gift is to be taken into account in computing the division and distribution of the decedent's intestate estate.

(b) For purposes of subsection (a), property advanced is valued as of the time the heir came into possession or enjoyment of the property or as of the time of the decedent's death, whichever first occurs.

(c) If the recipient of the property fails to survive the decedent, the property is not taken into account in computing the division and distribution of the decedent's intestate estate, unless the decedent's writing provides otherwise.

Source: SL 1995, ch 167, § 2-109.

29A-2-110. Debts to decedent.

A debt owed to a decedent is not charged against the intestate share of any individual except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in computing the intestate share of the debtor's descendants.

Source: SL 1995, ch 167, § 2-110.

29A-2-111. Alienage.

No individual is disqualified to take as an heir because that individual or another individual through whom that individual claims is or has been an alien.

Source: SL 1995, ch 167, § 2-111.

29A-2-112. Dower and curtesy abolished.

Dower and curtesy are abolished.

Source: SL 1995, ch 167, § 2-112.

29A-2-113. Individual related to decedent through two lines.

An individual who is related to the decedent through two lines of relationship is entitled to only a single share based on the relationship that would entitle the individual to the larger share.

Source: SL 1995, ch 167, § 2-113.

29A-2-114. Parent and child relationships.

(a) For purposes of intestate succession by, from, or through a person, and except as provided in subsection (b), an individual born out of wedlock is the child of that individual's birth parents. However, inheritance from or through the child by a birth parent or that birth parent's kindred is precluded unless that birth parent has openly treated the child as kindred, and has not refused to support the child.

(b) For purposes of intestate succession by, from, or through a person, an adopted individual is the child of that individual's adopting parent or parents and not of that individual's birth parents, except that:

(1)    Adoption of a child by the spouse of a birth parent has no effect on (i) the relationship between the child and the birth parent whose spouse has adopted the child or (ii) the right of the child or a descendant of the child to inherit from or through the other birth parent; and

(2)    Adoption of a child by a birth grandparent or a descendant of a birth grandparent of the child has no effect on the right of the child or a descendant of the child to inherit from or through either birth parent;

(c) The identity of the mother of an individual born out of wedlock is established by the birth of the child. The identity of the father may be established by the subsequent marriage of the parents, by a written acknowledgment by the father during the child's lifetime, by a judicial determination of paternity during the father's lifetime, or by a presentation of clear and convincing proof in the proceeding to settle the father's estate.

Source: SL 1995, ch 167, § 2-114.

29A-2-201. Definitions.

In this Part:

(1)    As used in sections other than § 29A-2-205, "decedent's nonprobate transfers to others" means the amounts that are included in the augmented estate under § 29A-2-205.

(2)    "Fractional interest in property held in joint tenancy with the right of survivorship" means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

(3)    "Marriage," as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.

(4)    "Nonadverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

(5)    "Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.

(6)    "Probate estate" means homestead allowance, family allowances, exempt property and property that would pass by intestate succession if the decedent died without a valid will.

(7)    "Property" includes values subject to a beneficiary designation.

(8)    "Right to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, a pension, profit-sharing or other retirement plan or account, or a similar arrangement.

(9)    "Transfer," as it relates to a transfer by or of the decedent, includes (A) an exercise or release of a presently exercisable general power of appointment held by the decedent, (B) a lapse at death of a presently exercisable general power of appointment held by the decedent, and (C) an exercise, release, or lapse of a general power of appointment that the decedent created in the decedent's own favor and of a power described in § 29A-2-205(2)(ii) that the decedent conferred on a nonadverse party.

Source: SL 1995, ch 167, § 2-201.

29A-2-202. Elective share.

(a) The surviving spouse of a decedent who dies domiciled in this State has a right of election, under the limitations and conditions stated in this Part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

If the decedent and the spouse    The elective-share

were married to each other:    percentage is:

Less than 1 year     Supplemental Amount Only

1 year but less than 2 years     3% of the augmented estate

2 years but less than 3 years     6% of the augmented estate

3 years but less than 4 years     9% of the augmented estate

4 years but less than 5 years     12% of the augmented estate

5 years but less than 6 years     15% of the augmented estate

6 years but less than 7 years     18% of the augmented estate

7 years but less than 8 years     21% of the augmented estate

8 years but less than 9 years     24% of the augmented estate

9 years but less than 10 years     27% of the augmented estate

10 years but less than 11 years     30% of the augmented estate

11 years but less than 12 years     34% of the augmented estate

12 years but less than 13 years     38% of the augmented estate

13 years but less than 14 years     42% of the augmented estate

14 years but less than 15 years     46% of the augmented estate

15 years or more     50% of the augmented estate

(b) If the sum of the amounts described in §§ 29A-2-207, 29A-2-209(a)(1), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under § 29A-2-209(b) and (c) is less than $50,000, the surviving spouse is entitled to take a supplemental elective-share amount equal to $50,000, minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in § 29A-2-209(b) and (c).

(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

(d) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

Source: SL 1995, ch 167, § 2-202.

29A-2-203. Computation of augmented estate.

Subject to § 29A-2-208, the value of the augmented estate, to the extent provided in §§ 29A-2-204, 29A-2-205, 29A-2-206, and 29A-2-207, consists of the sum of the values of all property, whether real or personal, movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's property and nonprobate transfers to others.

Source: SL 1995, ch 167, § 2-203.

29A-2-204. Decedent's net probate estate.

The value of the augmented estate includes the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead allowance, family allowances, exempt property, and enforceable claims.

Source: SL 1995, ch 167, § 2-204.

29A-2-205. Decedent's nonprobate transfers to others.

The value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included under § 29A-2-204, of any of the following types, in the amount provided respectively for each type of transfer:

(1)    Property owned by the decedent immediately before death that passed outside probate at the decedent's death. Property included under this category consists of:

(i)    Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse.

(ii)    The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse.

(iii)    The decedent's ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

(iv)    Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

(2)    Property transferred in any of the following forms by the decedent during marriage:

(i)    Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse.

(ii)    Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount.

(3)    Property that passed during marriage and during the two-year period immediately preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:

(i)    Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph (2), if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those paragraphs if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse, or surviving spouse. As used in this subparagraph, "termination," with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (1)(i), "termination" occurs when the power terminated by exercise or release, but not otherwise.

(ii)    Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under paragraph (1)(iv) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse.

(iii)    Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $10,000.

Source: SL 1995, ch 167, § 2-205.

29A-2-206. Decedent's nonprobate transfers to surviving spouse.

Excluding property passing to the surviving spouse under the federal Social Security System, the value of the augmented estate includes the value of the decedent's nonprobate transfers to the decedent's surviving spouse, which consist of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including:

(1)    The decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant;

(2)    The decedent's ownership interest in property or accounts held in co-ownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving co-owner; and

(3)    All other property that would have been included in the augmented estate under § 29A-2-205(1) or (2) had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate creditors.

Source: SL 1995, ch 167, § 2-206.

29A-2-207. Surviving spouse's property and nonprobate transfers to others.

(a) Except to the extent included in the augmented estate under § 29A-2-204 or 29A-2-206, the value of the augmented estate includes the value of:

(1)    Property that was owned by the decedent's surviving spouse at the decedent's death, including:

(i)    The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;

(ii)    The surviving spouse's ownership interest in property or accounts held in co-ownership registration with the right of survivorship; and

(iii)    Property that passed to the surviving spouse by reason of the decedent's death, but not including the spouse's right to homestead allowance, family allowance, exempt property, or payments under the federal Social Security System; and

(2)    Property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under subsection (a)(1)(i) or (ii), had the spouse been the decedent.

(b) Property included under this section is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, but, for purposes of subsection (a)(1)(i) and (ii), the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a co-owner of the property or accounts. For purposes of subsection (a)(2), proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under § 29A-2-205(1)(iv) are not valued as if the surviving spouse were deceased.

(c) The value of property included under this section is reduced by enforceable claims against the surviving spouse.

Source: SL 1995, ch 167, § 2-207.

29A-2-208. Exclusions, valuation, and overlapping application.

(a) The value of any property is excluded from the decedent's nonprobate transfers to others (i) to the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property or (ii) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse.

(b) The value of property:

(1)    Included in the augmented estate under § 29A-2-205, 29A-2-206, or 29A-2-207 is reduced in each category by enforceable claims against the included property; and

(2)    Includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security system.

(c) In case of overlapping application to the same property of the paragraphs or subparagraphs of § 29A-2-205, 29A-2-206, or 29A-2-207, the property is included in the augmented estate under the provision resulting in the greatest value, and under only one overlapping provision if they all yield the same value.

Source: SL 1995, ch 167, § 2-208.

29A-2-209. Sources from which elective shares payable.

(a) In a proceeding for an elective share, the following are applied first to satisfy the elective-share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:

(1)    Amounts included in the augmented estate under § 29A-2-204 which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under § 29A-2-206;

(2)    Amounts included in the augmented estate which would have passed to the spouse but were disclaimed; and

(3)    Amounts included in the augmented estate under § 29A-2-207 up to the applicable percentage thereof. For the purposes of this subsection, the "applicable percentage" is twice the elective-share percentage set forth in the schedule in § 29A-2-202(a) appropriate to the length of time the spouse and the decedent were married to each other.

(b) If, after the application of subsection (a), the elective-share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective-share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under § 29A-2-205(3)(i) or (iii), are applied first to satisfy the unsatisfied balance of the elective-share amount or the supplemental elective-share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are applied so that liability for the unsatisfied balance of the elective-share amount or for the supplemental elective-share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

(c) If, after the application of subsections (a) and (b), the elective-share or supplemental elective-share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is applied so that liability for the unsatisfied balance of the elective-share or supplemental elective-share amount is equitably apportioned among the recipients of the remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

Source: SL 1995, ch 167, § 2-209.

29A-2-210. Personal liability of recipients.

(a) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective-share or supplemental elective-share amount. A person liable to make contribution may choose to give up the person's proportional part of the decedent's nonprobate transfers or to pay the value of the amount for which the person is liable.

(b) If any section or part of any section of this part is preempted by federal law with respect to a payment, an item of property, or any other benefit included in the decedent's nonprobate transfers to others, a person who, not for value, receives the payment, item of property, or any other benefit 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 that item of property or benefit, as provided in § 29A-2-209, to the person who would have been entitled to it were that section or part of that section not preempted.

Source: SL 1995, ch 167, § 2-210.

29A-2-211. Proceeding for elective share--Time limit.

(a) Unless the time for filing an election is extended under subsection (b), the election must be made by filing in the court and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within four months after the admission to either informal or formal probate of the will of the decedent to which the election applies, whichever limitation later expires. Notice of hearing on the election must be given to persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests will be adversely affected by the taking of the elective share. The decedent's nonprobate transfers to others are not included within the augmented estate for the purpose of computing the elective share if the petition is filed more than nine months after the decedent's death or beyond the time extended by the court under subsection (b).

(b) Within nine months after the decedent's death, a petition for an extension of time for making an election may be filed and the court may grant the petition for good cause shown. Notice of the petition must be given to all persons interested in the decedent's nonprobate transfers to others.

(c) A demand for an elective share may be withdrawn at any time before entry of a final determination by the court.

(d) After notice and hearing, the court shall determine the elective-share and supplemental elective-share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 29A-2-209 and 29A-2-210. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than the person would have been under §§ 29A-2-209 and 29A-2-210 had relief been secured against all persons subject to contribution.

(e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Source: SL 1995, ch 167, § 2-211.

29A-2-212. Right of election personal to surviving spouse.

The right of election may be exercised either by the surviving spouse or by the surviving spouse's conservator or agent under the authority of a power of attorney, or if the surviving spouse dies prior to the expiration of the time for making an election under § 29A-2-211, by the surviving spouse's personal representative.

Source: SL 1995, ch 167, § 2-212.

29A-2-213. Waiver of right to elect and of other rights.

(a) The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance, or any of them, may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the surviving spouse.

(b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that:

(1)    The waiver was not executed voluntarily; or

(2)    The waiver was unconscionable when it was executed and, before execution of the waiver, the surviving spouse:

(i)    Was not provided a fair and reasonable disclosure of the property or financial obligations of the decedent;

(ii)    Did not voluntarily and expressly waive, in writing, any right to disclosure of the property or financial obligations of the decedent beyond the disclosure provided; and

(iii)    Did not have, or reasonably could not have had, an adequate knowledge of the property or financial obligations of the decedent.

(c) An issue of unconscionability of a waiver is for decision by the court as a matter of law.

(d) Unless it provides to the contrary, a waiver of "all rights," or equivalent language, in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights of elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits that would otherwise pass from the other by intestate succession or by virtue of any will executed before the waiver or property settlement.

Source: SL 1995, ch 167, § 2-213.

29A-2-214. Protection of payors and other third parties.

(a) Although under § 29A-2-205 a payment, item of property, or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made a payment or transferred an item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in good faith reliance on the validity of a governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party has received written notice from the surviving spouse or spouse's representative of an intention to file a petition for the elective share or that a petition for the elective share has been filed. A payor or other third party is liable for payments made or other actions taken after the payor or other third party received written notice of an intention to file a petition for the elective share or that a petition for the elective share has been filed.

(b) A written notice of intention to file a petition for the elective share or that a petition for the elective share has been filed must be mailed 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 intention to file a petition for the elective share or that a petition for the elective share has been filed, a payor 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 proceedings relating to the settlement of the decedent's estate, or if no proceedings have been commenced, to or with the court located in the county of the decedent's residence. The court shall hold the funds or item of property and, upon its determination under § 29A-2-211(d), shall order disbursement in accordance with the determination. If no petition is filed in the court within the specified time under § 29A-2-211(a) or, if filed, the demand for an elective share is withdrawn under § 29A-2-211(c), the court shall order disbursement to the designated beneficiary. Payments or transfers to the court or deposits made into court discharge the payor or other third party from all claims for amounts so paid or the value of property so transferred or deposited.

(c) 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 part.

Source: SL 1995, ch 167, § 2-214.

29A-2-301. Entitlement of spouse--Premarital will.

(a) A testator's surviving spouse who married the testator after the execution of the testator's will is entitled to receive, as an intestate share, no less than the value of the share of the estate the surviving spouse would have received if the testator had died intestate, unless:

(1)    It appears from the will or other evidence that the will was made in contemplation of the testator's marriage to the surviving spouse;

(2)    The will expresses the intention that it is to be effective notwithstanding any subsequent marriage; or

(3)    The testator provided for the spouse by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

(b) In satisfying the share provided by this section, devises made by the will to the testator's surviving spouse, if any, are applied first, and other devises abate as provided in § 29A-3-902.

Source: SL 1995, ch 167, § 2-301.

29A-2-302. Omitted children.

(a) A child born to or adopted by the testator after the execution of the will who is neither mentioned nor provided for in the will is entitled to receive a share in the estate as follows:

(1)    If the testator had no child living when the will was executed, the omitted after-born or after-adopted child receives a share in the estate equal in value to that which the child would have received had the testator died intestate, unless the will devised all or substantially all of the estate to the other parent of the omitted child and that other parent survives the testator and is entitled to take under the will. In satisfying the share, devises made by the will abate under § 29A-3-902.

(2)    If the testator had one or more children living when the will was executed, and the will devised property or an interest in property to one or more of the then-living children:

(i)    The portion of the testator's estate in which the omitted after-born or after-adopted child is entitled to share is limited to the devises made to the testator's then-living children.

(ii)    The omitted after-born or after-adopted child is entitled to receive the portion of the devised property or interest in property that the child would have received had the testator included all omitted after-born and after-adopted children with the children to whom devises were made and had given each child an equal share of the devises.

(iii)    To the extent feasible, the interest granted the omitted after-born or after-adopted child must be of the same character, whether equitable or legal, present or future, as that devised to the testator's then-living children.

(iv)    In satisfying the share, devises to the testator's children who were living when the will was executed abate ratably. In abating the devises, the court shall preserve to the maximum extent possible the character of the testamentary plan adopted by the testator.

(3)    Despite the foregoing, an omitted after-born or after-adopted child may not receive a share in the estate if the testator provided for the child by transfer outside the will and the intent that the transfer be in lieu of a testamentary provision is shown by the testator's statements or is reasonably inferred from the amount of the transfer or other evidence.

(b) For purposes of this section, a child whom the testator failed to provide for by will because the testator believed the child to be dead shall be considered an omitted after-born or after-adopted child.

Source: SL 1995, ch 167, § 2-302.

29A-2-401. Applicable law.

This part applies to the estate of a decedent who dies domiciled in this state. Rights to homestead allowance, exempt property, and family allowance for a decedent who dies not domiciled in this state are governed by the law of the decedent's domicile at death.

Source: SL 1995, ch 167, § 2-401.

29A-2-402. Homestead allowance.

(a) A decedent's surviving spouse or minor children are entitled to a homestead allowance as provided in chapter 43-31. In addition to the homestead allowance, the decedent's surviving spouse is entitled to the property and cash described as exempt property in chapter 43-45. If there is no surviving spouse, the decedent's children are entitled jointly to the exempt property.

(b) Exempt property and homestead allowance are in addition to any share passing to the surviving spouse or children by the decedent's will, by intestate succession, or by way of elective share. Exempt property and homestead allowance have priority over all claims against the estate.

(c) Property that is specifically devised may not be used to satisfy rights to homestead allowance or exempt property to the extent there is other property of the estate available to satisfy such rights.

(d) The personal representative may execute an instrument or deed of distribution to establish the ownership of property taken as homestead allowance or exempt property. The personal representative or any interested person aggrieved by any selection, determination, or failure to act under this section may petition the court for appropriate relief.

Source: SL 1995, ch 167, § 2-402.

29A-2-403. Family allowance.

(a) In addition to the homestead allowance and exempt property, the decedent's surviving spouse and minor children whom the decedent was obligated to support and the children who were in fact being supported by the decedent shall be allowed a reasonable family allowance in money out of the estate for their maintenance during the period of administration.

(b) Without the necessity of court approval, the personal representative may determine the family allowance in a lump sum not exceeding $18,000 or in installments not exceeding $1,500 per month for one year.

(c) The family allowance shall be payable to the surviving spouse, if living, for the use of the surviving spouse and any minor or dependent children; otherwise to the children, their guardian, conservator, or persons having their care and custody. If a minor child or dependent child is not living with the surviving spouse, the allowance may be made partially to the child or the guardian, conservator, or person having the care and custody of that child, and partially to the spouse, as their needs may appear.

(d) The family allowance is exempt from and has priority over all claims except the homestead and exempt property allowances.

(e) The family allowance is not chargeable against any benefit or share passing to the surviving spouse or children by the will of the decedent, unless otherwise provided, by intestate succession, or by way of elective share. The death of any person entitled to the family allowance terminates the right of that person to allowances not yet paid.

(f) The personal representative or an interested person aggrieved by any determination, payment, proposed payment, or failure to act under this section may petition the court for appropriate relief, which may include a family allowance other than that which the personal representative determined or could have determined.

Source: SL 1995, ch 167, § 2-403.

29A-2-501. Who may make a will.

An individual eighteen or more years of age who is of sound mind may make a will.

Source: SL 1995, ch 167, § 2-501.

29A-2-502. Holographic will--Validity of non-holographic will--Establishing intent.

(a) A will is valid as a holographic will, whether or not witnessed, if the signature and material portions of the document are in the testator's handwriting.

(b) A will not valid as a holographic will must be:

(1)    In writing;

(2)    Signed by the testator or in the testator's name by some other individual in the testator's conscious presence and by the testator's direction; and

(3)    Signed in the conscious presence of the testator by two or more individuals who, in the conscious presence of the testator, witnessed either the signing of the will or the testator's acknowledgment of that signature.

(c) Intent that the document constitute the testator's will can be established by extrinsic evidence, including, for holographic wills, portions of the document that are not in the testator's handwriting.

Source: SL 1995, ch 167, § 2-502.

29A-2-503. Writings intended as wills, etc..

Although a document or writing added upon a document was not executed in compliance with § 29A-2-502, the document or writing is treated as if it had been executed in compliance with that section if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute (i) the decedent's will, (ii) a partial or complete revocation of the will, (iii) an addition to or an alteration of the will, or (iv) a partial or complete revival of a formerly revoked will or of a formerly revoked portion of the will.

Source: SL 1995, ch 167, § 2-503.

29A-2-504. Self-proved will.

(a) A will may be simultaneously executed, attested, and made self-proved, by acknowledgment thereof by the testator and affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which execution occurs and evidenced by the officer's certificate, under official seal, in substantially the following form:

I, ________________, the testator, sign my name to this instrument this ______ day of ____________, and being first duly sworn, do hereby declare to the undersigned authority that I sign and execute this instrument as my will and that I sign it willingly (or willingly direct another to sign for me), that I execute it as my free and voluntary act for the purposes therein expressed, and that I am eighteen years of age or older, of sound mind, and under no constraint or undue influence.

______________________________

Testator

We, ________________, ________________, the witnesses, sign our names to this instrument, being first duly sworn, and do hereby declare to the undersigned authority that the testator signs and executes this instrument as [his] [her] will and that [he] [she] signs it willingly (or willingly directs another to sign for [him] [her]), that [he] [she] executes it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of us, in the presence and hearing of the testator, hereby signs this will as witness to the testator's signing, and that to the best of our knowledge the testator is eighteen years of age or older, of sound mind, and under no constraint or undue influence.

    ______________________________

    Witness

    ______________________________

    Witness

The State of __________________

County of ________________________

Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.

(Seal)

    (Signed)

    ____________________________

    ____________________________

    (Official capacity of officer)

(b) An attested will may be made self-proved at any time after its execution by the acknowledgment thereof by the testator and the affidavits of the witnesses, each made before an officer authorized to administer oaths under the laws of the state in which the acknowledgment occurs and evidenced by the officer's certificate, under the official seal, attached or annexed to the will in substantially the following form:

The State of __________________

County of ________________________

We,_____________, _____________, and _____________, the testator and the witnesses, respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testator signed and executed the instrument as the testator's will and that [he] [she] had signed willingly (or willingly directed another to sign for [him] [her]), and that [he] [she] executed it as [his] [her] free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the testator, signed the will as witness and that to the best of [his] [her] knowledge the testator was at that time eighteen years of age or older, of sound mind, and under no constraint or undue influence.

    ______________________________

    Testator

    ______________________________

    Witness

    ______________________________

    Witness

Subscribed, sworn to and acknowledged before me by ________________, the testator, and subscribed and sworn to before me by ________________, and ________________, witnesses, this ______ day of ____________.

(Seal)

    Signed

    ____________________________

    ____________________________

    (Official capacity of officer)

(c) A signature affixed to a self-proving affidavit attached to a will is considered a signature affixed to the will, if necessary to prove the will's due execution.

Source: SL 1995, ch 167, § 2-504.

29A-2-505. Who may witness.

(a) An individual generally competent to be a witness may act as a witness to a will.

(b) The signing of a will by an interested witness does not invalidate the will or any provision of it.

Source: SL 1995, ch 167, § 2-505.

29A-2-506. Choice of law as to execution.

A written will is valid if executed in compliance with § 29A-2-502 or 29A-2-503 or if its execution complies with the law at the time of execution of the jurisdiction where the will is executed, or of the law of the jurisdiction where at the time of execution or at the time of death the testator is domiciled, has a place of abode, or is a national.

Source: SL 1995, ch 167, § 2-506.

29A-2-507. Revocation by writing or by act.

(a) A will or any part thereof is revoked:

(1)    By executing a subsequent will that revokes the previous will or part expressly or by inconsistency; or

(2)    By performing a revocatory act on the will, if the testator performed the act with the intent and for the purpose of revoking the will or part or if another individual performed the act in the testator's conscious presence and by the testator's direction. For purposes of this paragraph, "revocatory act on the will" includes burning, tearing, canceling, obliterating, or destroying the will or any part of it, whether or not the revocatory act touched any of the words on the will.

(b) If a subsequent will does not expressly revoke a previous will, the execution of the subsequent will wholly revokes the previous will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will.

(c) The testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if the subsequent will makes a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the previous will is revoked; only the subsequent will is operative on the testator's death.

(d) The testator is presumed to have intended a subsequent will to supplement rather than replace a previous will if the subsequent will does not make a complete disposition of the testator's estate. If this presumption arises and is not rebutted by clear and convincing evidence, the subsequent will revokes the previous will only to the extent the subsequent will is inconsistent with the previous will; each will is fully operative on the testator's death to the extent they are not inconsistent.

Source: SL 1995, ch 167, § 2-507.

29A-2-508. Revocation by change of circumstances.

Except as provided in §§ 29A-2-803 and 29A-2-804, a change of circumstances does not revoke a will or any part of it.

Source: SL 1995, ch 167, § 2-508.

29A-2-509. Revival of revoked will.

(a) If a subsequent will that wholly revoked a previous will is thereafter revoked by a revocatory act under § 29A-2-507(a)(2), the previous will is revived only if it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent statements that the testator intended the previous will to take effect as executed.

(b) If a subsequent will that partly revoked a previous will is thereafter revoked by a revocatory act under § 29A-2-507(a)(2), a revoked part of the previous will is revived unless it is evident from the circumstances of the revocation of the subsequent will or from the testator's contemporary or subsequent statements that the testator did not intend the revoked part to take effect as executed.

(c) If a subsequent will that revoked a previous will in whole or in part is thereafter revoked by another, later, will, the previous will or its revoked part is revived only to the extent that it appears from the terms of the later will that the testator intended the previous will to take effect.

Source: SL 1995, ch 167, § 2-509.

29A-2-510. Incorporation by reference.

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Source: SL 1995, ch 167, § 2-510.

29A-2-511. Testamentary additions to trusts.

(a) A will may validly devise property to the trustee of a trust established or to be established (i) during the testator's lifetime by the testator, by the testator and some other person, or by some other person, including a funded or unfunded life insurance trust, although the settlor has reserved any or all rights of ownership of the insurance contracts, or (ii) at the testator's death by the testator's devise to the trustee, if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, concurrently with, or after the execution of the testator's will or in another individual's will if that other individual has predeceased the testator, regardless of the existence, size, or character of the corpus of the trust. The devise is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death.

(b) Unless the testator's will provides otherwise, property devised to a trust described in subsection (a) is not held under a testamentary trust of the testator, but it becomes a part of the trust to which it is devised, and must be administered and disposed of in accordance with the provisions of the governing instrument setting forth the terms of the trust, including any amendments thereto made before or after the testator's death.

(c) Unless the testator's will provides otherwise, a revocation or termination of the trust before the testator's death causes the devise to lapse.

Source: SL 1995, ch 167, § 2-511.

29A-2-512. Events of independent significance.

A will may dispose of property by reference to acts and events that have significance apart from their effect upon the dispositions made by the will, whether they occur before or after the execution of the will or before or after the testator's death. The execution or revocation of another individual's will is such an event.

Source: SL 1995, ch 167, § 2-512.

29A-2-513. Separate writing identifying devise of certain types of tangible personal property.

Whether or not the provisions relating to holographic wills apply, a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be referred to as one to be in existence at the time of the testator's death; it may be prepared before or after the execution of the will; it may be altered by the testator after its preparation; and it may be a writing that has no significance apart from its effect on the dispositions made by the will.

Source: SL 1995, ch 167, § 2-513.

29A-2-514. Contracts concerning succession.

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, if executed on or after July 1, 1995, may be established only by (i) provisions of a will stating material provisions of the contract, (ii) an express reference in a will to a contract and extrinsic evidence proving the terms of the contract, or (iii) a writing signed by the decedent evidencing the contract. The execution of a joint will or mutual wills does not create a presumption of a contract not to revoke the will or wills.

Source: SL 1995, ch 167, § 2-514.

29A-2-515. Deposit of will with court in testator's lifetime.

A will may be deposited by the testator or the testator's agent with any court for safekeeping. The will must be sealed and kept confidential. During the testator's lifetime, a deposited will must be delivered only to the testator or to a person authorized in writing signed by the testator to receive the will. A conservator may be allowed to examine a deposited will of a protected testator under procedures designed to maintain the confidential character of the document to the extent possible, and to ensure that it will be resealed and kept on deposit after the examination. Upon being informed of the testator's death, the court shall notify any person designated to receive the will and deliver it to that person on request; or the court may deliver the will to the appropriate court.

Source: SL 1995, ch 167, § 2-515.

29A-2-516. Duty of custodian of will--Liability.

After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to an appropriate court or to a person able to secure its probate. A person who willfully fails to deliver a will is liable to any person aggrieved for any damages that may be sustained by the failure.

Source: SL 1995, ch 167, § 2-516.

29A-2-517. Penalty clause for contest.

A provision in a will purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable if probable cause exists for instituting proceedings.

Source: SL 1995, ch 167, § 2-517.

29A-2-601. Scope.

In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a will.

Source: SL 1995, ch 167, § 2-601.

29A-2-602. Will may pass all property and after-acquired property.

A will may provide for the passage of all property the testator owns at death and all property acquired by the estate after the testator's death.

Source: SL 1995, ch 167, § 2-602.

29A-2-603. Anti-lapse--Deceased devisee--Class gifts.

(a) If an individual named as a devisee in a will dies before the will was executed, or dies after the will was executed and before the testator, the devise fails unless (i) the devisee is a grandparent, a descendant of a grandparent, a stepchild, or a descendant of the stepchild of the testator and (ii) the devisee left descendants who survive the testator. Those descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.

(b) If a devise is made in the form of a class gift and a devisee (member of the class) dies before the will was executed, or dies after the will was executed and before the testator, the share of the devisee fails, passes to the surviving members of the class, or passes to the surviving descendants of any deceased members of the class, as the case may be, unless (i) the devisee is a grandparent, a descendant of a grandparent, a stepchild, or a descendant of a stepchild of the testator and (ii) the devisee left descendants who survive the testator. Those descendants take by representation the property to which the devisee would have been entitled had the devisee survived the testator.

(c) For purposes of this section:

(1)    "Class gift" excludes a devise to "issue," "descendants," or "heirs of the body," the disposition of which is controlled by § 29A-2-708, and excludes a devise to "heirs," "next of kin," "relatives," "family," or a class described by language of similar import, the disposition of which is controlled by § 29A-2-711.

(2)    "Devise" excludes a future interest in trust, the disposition of which is controlled by § 29A-2-707, and "devisee" excludes a beneficiary thereof.

Source: SL 1995, ch 167, § 2-603.

29A-2-604. Failure of testamentary provision.

(a) A devise, other than a residuary devise, that fails for any reason becomes a part of the residue.

(b) A residuary devise that fails for any reason passes to the testator's heirs unless the residue is devised to two or more persons, in which event the failed devise passes to the other residuary devisee, or to other residuary devisees in proportion to the interest of each in the remaining part of the residue.

Source: SL 1995, ch 167, § 2-604.

29A-2-605. Increase in securities--Accessions.

(a) If a testator executes a will that devises securities and the testator then owned securities that meet the description in the will, the devise includes additional securities owned by the testator at death to the extent the additional securities were acquired by the testator after the will was executed as a result of the testator's ownership of the described securities and are securities of any of the following types:

(1)    Securities of the same organization acquired by reason of action initiated by the organization or any successor, related, or acquiring organization, excluding any acquired by exercise of purchase options;

(2)    Securities of another organization acquired as a result of a merger, consolidation, reorganization, or other distribution by the organization or any successor, related, or acquiring organization; or

(3)    Securities of the same organization acquired as a result of a plan of reinvestment.

(b) Distributions in cash before death with respect to a described security are not part of the devise.

Source: SL 1995, ch 167, § 2-605.

29A-2-606. Nonademption of specific devises--Unpaid proceeds of sale, condemnation, or insurance--Sale by conservator or agent.

(a) A specific devisee has a right to the specifically devised property in the testator's estate at death and:

(1)    Any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property;

(2)    Any amount of a condemnation award for the taking of the property unpaid at death;

(3)    Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;

(4)    Property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation;

(5)    Property owned by the testator at death if it is evident from the circumstances that the testator intended the property to be distributed as a replacement for specifically devised property.

(b) If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for a principal who lacks capacity, or if a condemnation award, insurance proceeds, or recovery for injury to the property are paid to a conservator or to an agent acting within the authority of a durable power of attorney for a principal who lacks capacity, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery. The right of a specific devisee under this subsection is reduced by any right the devisee has under subsection (a). For purposes of this subsection, the acts of an agent within the authority of a durable power of attorney are presumed to be for a principal who lacks capacity.

Source: SL 1995, ch 167, § 2-606.

29A-2-607. Nonexoneration.

A specific devise passes subject to any mortgage interest existing at the date of death, without right of exoneration, regardless of a general directive in the will to pay debts.

Source: SL 1995, ch 167, § 2-607.

29A-2-608. Exercise of power of appointment.

In the absence of a requirement that a power of appointment be exercised by a reference, or by an express or specific reference, to the power, a general residuary clause in a will, or a will making general disposition of all of the testator's property, expresses an intention to exercise a power of appointment held by the testator only if (i) the power is a general power and the creating instrument does not contain a gift if the power is not exercised or (ii) the testator's will manifests an intention to include the property subject to the power.

Source: SL 1995, ch 167, § 2-608.

29A-2-609. Ademption by satisfaction.

(a) Property a testator gave during lifetime to a person is treated as a satisfaction of a devise in whole or in part, only if (i) the will provides for deduction of the gift, (ii) the testator declared in a writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise, or (iii) the devisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise.

(b) For purposes of partial satisfaction, property given during lifetime is valued as of the time the devisee came into possession or enjoyment of the property or at the testator's death, whichever occurs first.

(c) If the devisee fails to survive the testator, the gift is treated as a full or partial satisfaction of the devise, as appropriate, in applying §§ 29A-2-603 and 29A-2-604, unless the testator's writing provides otherwise.

Source: SL 1995, ch 167, § 2-609.

29A-2-701. Scope.

In the absence of a finding of a contrary intention, the rules of construction in this part control the construction of a governing instrument. The rules of construction in this part apply to a governing instrument of any type, except as the application of a particular section is limited by its terms to a specific type or types of provision or governing instrument.

Source: SL 1995, ch 167, § 2-701.

29A-2-702. Requirement of survival by 120 hours.

(a) For the purposes of this code, an individual who does not survive an event, including the death of another individual, by 120 hours is deemed to have predeceased the event.

(b) 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 does not survive the event by 120 hours is deemed to have predeceased the event.

(c) If (i) it is not established that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours and (ii) there are more than two co-owners and at least one of them did not survive the others by 120 hours, the property passes in the proportion 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 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.

(d) Survival by 120 hours is not required if:

(1)    The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster;

(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 by a specified period; or

(3)    The application of this section to multiple governing instruments would result in an unintended failure or duplication of a disposition.

(e)(1) A payor 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 payor or other third party has received written notice of a claimed lack of entitlement under this section. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this section.

(2)    Written notice of a claimed lack of entitlement under paragraph (1) must be mailed 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 under this section, a payor 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 proceedings relating to the settlement of the decedent's estate, or if no proceedings have been commenced, to or with the court 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 payor 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.

(f)(1) 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.

(2)    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.

Source: SL 1995, ch 167, § 2-702.

29A-2-703. Choice of law as to meaning and effect of governing instrument.

The meaning and legal effect of a governing instrument is determined by the local law of the state selected by the transferor in the governing instrument, unless the application of that law is contrary to the provisions relating to the elective share described in Part 2, the provisions relating to exempt property and allowances described in Part 4, or any other public policy of this state otherwise applicable to the disposition.

Source: SL 1995, ch 167, § 2-703.

29A-2-704. Power of appointment--Meaning of specific reference requirement.

If a governing instrument creating a power of appointment expressly requires that the power be exercised by a reference, an express reference, or a specific reference, to the power or its source, it is presumed that the donor's intention, in requiring that the donee exercise the power by making reference to the particular power or to the creating instrument, was to prevent an inadvertent exercise of the power.

Source: SL 1995, ch 167, § 2-704.

29A-2-705. Class gifts construed to accord with intestate succession.

Adopted individuals and individuals born out of wedlock, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by blood from those by affinity, such as "uncles," "aunts," "nieces," or "nephews," are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as "brothers," "sisters," "nieces," or "nephews," are construed to include both types of relationships.

Source: SL 1995, ch 167, § 2-705.