H. B. 2638
(By Delegate Kiss)
[Introduced March 19, 1993; referred to the
Committee on the Judiciary.]
A BILL to repeal section five, article three, chapter forty-two
of the code of West Virginia, one thousand nine hundred
thirty-one, as amended; to amend and reenact section six,
article one, chapter forty-one of said code; to amend and
reenact section three-b, article one, chapter forty-two of
said code; and to amend and reenact sections one, two,
three, three-a and four, article three of said chapter
forty-two, all relating to the effect of a divorce or
annulment of a marriage on dispositions, appointments,
conveyances or nominations made in testator's will with
respect to former spouse, clarifying effective date, setting
forth right of surviving spouse to an elective share in the
case of intestacy, entitling a surviving spouse to the
supplemental share if the amount provided by the will and
other entitlements is less than the supplemental share,
clarifying the source of payment of the supplemental
elective share amount, correcting reference to code section,
and eliminating need to notify persons against whom
surviving spouse is not proceeding for elective share.
Be it enacted by the Legislature of West Virginia:
That section five, article three, chapter forty-two of the
code of West Virginia, one thousand nine hundred thirty-one, as
amended, be repealed; that section six, article one, chapter
forty-one of said code be amended and reenacted; that section
three-b, article one, chapter forty-two of said code be amended
and reenacted; and that sections one, two, three, three-a and
four, article three of said chapter forty-two be amended and
reenacted, all to read as follows:
CHAPTER 41. WILLS.
ARTICLE 1. CAPACITY TO MAKE; REQUISITES; VALIDITY.
§41-1-6. Revocation by divorce; no revocation by other changes
of circumstances.
(a) If after executing a will the testator is divorced or
his marriage annulled, the divorce or annulment revokes any
disposition or appointment of property made by the will to the
former spouse, any provision conferring a general or special
power of appointment on the former spouse, and any nomination of
the former spouse as executor, trustee, conservator, or guardian,
unless the will expressly provides otherwise. Property prevented
from passing to a former spouse because of revocation by divorce
or annulment passes as if the former spouse failed to survive the
decedent, except that the provisions of section three, article
three, chapter forty-one do not apply, and other provisions
conferring some power or office on the former spouse are
interpreted as if the spouse failed to survive the decedent.
Notwithstanding the provisions of section three, article three,chapter forty-one of this code, the share of such spouse shall be
distributed according to the residuary clause of the decedent's
will or according to the statute of intestate succession for the
decedents property. If provisions are revoked solely by this
section, they are revived by testator's remarriage to the former
spouse. For purposes of this section, divorce or annulment means
any divorce or annulment which would exclude the spouse as a
surviving spouse. A decree of separation which does not
terminate the status of husband and wife is not a divorce for
purposes of this section. No change of circumstances other than
as described in this section revokes a will.
(b) This section applies to all divorces, annulments or
remarriages which become effective after the fifth day of June,
one thousand nine hundred ninety-two.
CHAPTER 42. DESCENT AND DISTRIBUTION.
ARTICLE 1. DESCENT.
§42-1-3b. Requirement that heir survive decedent for one
hundred twenty hours.
An individual who fails to survive the decedent by one
hundred twenty 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. If the time of death of a decedent or of an
individual who would otherwise be an heir, or the times of death
of both, cannot be determined, and it is not established that the
individual who would otherwise be an heir survived the decedent
by one hundred twenty hours, it is deemed that the individual
failed to survive for the required period. This section is notto be applied if its application would result in a taking of
intestate estate by the state under section three-c of this
article.
ARTICLE 3. PROVISIONS RELATING TO HUSBAND OR WIFE OF DECEDENT.
§42-3-1. Right to elective share.
(a) The surviving spouse of a decedent who dies domiciled in
this state has a right of election, against either the will or
the intestate share, 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 spouseThe
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 subdivisions (3)
and (4), subsection (b) of section two, and subdivisions (1) and
(3), subsection (a), section six of this article, and that part
of the elective-share amount payable from the decedent's probate
and reclaimable estates under subsections (b) and (c), sectionsix of this article, is less than twenty-five thousand dollars,
the surviving spouse is entitled to a supplemental elective-share
amount equal to fifty twenty-five thousand dollars, 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 probate estate and
from recipients of the decedent's reclaimable estate in the order
of priority set forth in subsections (b) and (c), section six of
this article.
(c) 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.
§42-3-2. Augmented estate.
(a) Definitions.
(1) In this section:
(i) "Bona fide purchaser" means a purchaser for value in
good faith and without notice of an adverse claim. The notation
of a state documentary fee on a recorded instrument is prima
facie evidence that the transfer described therein was made to a
bona fide purchaser.
(ii) "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 he or she 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.
(iii) "Presently exercisable general power of appointment"
means a power of appointment under which, at the time in
question, the decedent by an exercise of the power could have
created an interest, present or future, in himself or herself or
his or her creditors.
(iv) "Probate estate" means property, whether real or
personal, movable or immovable, wherever situated, that would
pass by intestate succession if the decedent died without a
valid will.
(v) "Right to income" includes a right to payments under an
annuity or similar contractual arrangement.
(vi) "Value of property owned by the surviving spouse at the
decedent's death" and "value of property to which the surviving
spouse succeeds by reason of the decedent's death" include the
commuted value of any present or future interest then held by the
surviving spouse and the commuted value of amounts payable to the
surviving spouse after the decedent's death 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.
(2) In subsections (b)(2)(iii) and (iv), "transfer" includes
an exercise or release of a power of appointment, but does not
include a lapse of a power of appointment.
(b) The augmented estate consists of the sum of:
(1) The value of the decedent's probate estate, reduced by
funeral and administration expenses, homestead exemption,
property exemption, and enforceable claims;
(2) The value of the decedent's reclaimable estate. The
decedent's reclaimable estate is composed of all property,
whether real or personal, movable or immovable, wherever
situated, not included in the decedent's probate estate, of any
of the following types:
(i) Property to the extent the passing of the principal
thereof to or for the benefit of any person, other than the
decedent's surviving spouse, was subject to a presently
exercisable general power of appointment held by the decedent
alone, if the decedent held that power immediately before his or
her death, or if and to the extent the decedent, while married to
his or her surviving spouse and during the two-year period next
preceding the decedent's death, released that power or exercise
that power in favor of any person other than the decedent or the
decedent's estate, spouse or surviving spouse;
(ii) Property, to the extent of the decedent's unilaterally
severable interest therein, held by the decedent and any other
person, except the decedent's surviving spouse, with right of
survivorship, acquired during the marriage of the decedent and
the surviving spouse, if the decedent held that interest
immediately before his or her death or if and to the extent the
decedent, while married to his or her surviving spouse and during
the two-year period preceding the decedent's death, transferred
that interest to any person other than the decedent's surviving
spouse;
(iii) Proceeds of insurance, including accidental death
benefits, on the life of the decedent payable to any person other
than the decedent's surviving spouse, if the decedent owned theinsurance policy, had the power to change the beneficiary of the
insurance policy, or the insurance policy was subject to a
presently exercisable general power of appointment held by the
decedent alone immediately before his or her death or if and to
the extent the decedent, while married to his or her surviving
spouse and during the two-year period next preceding the
decedent's death, transferred that policy to any person other
than the decedent's surviving spouse; and
(iv) Property transferred by the decedent to any person
other than a bona fide purchaser at any time during the
decedent's marriage to the surviving spouse, to or for the
benefit of any person, other than the decedent's surviving
spouse, if the transfer is of any of the following types:
(A) Any transfer to the extent that the decedent retained at
the time of or during the two-year period next preceding his or
her death the possession or enjoyment of, or right to income from
the property;
(B) Any transfer to the extent that, at the time of or
during the two-year period next preceding the decedent's death,
the income or principal was subject to a power, exercisable by
the decedent alone or in conjunction with any other person or
exercisable by a nonadverse party, for the benefit of the
decedent or the decedent's estate;
(C) Any transfer of property, to the extent the decedent's
contribution to it, as a percentage of the whole, was made within
two years before the decedent's death, by which the property is
held, at the time of or during the two-year period next preceding
the decedent's death, by the decedent and another, other than thedecedent's surviving spouse, with right of survivorship; or
(D) Any transfer made to a donee within two years before the
decedent's death to the extent that the aggregate transfers to
any one donee in either of the years exceed ten thousand dollars.
(3) The value of property to which the surviving spouse
succeeds by reason of the decedent's death, other than by
homestead exemption, exempt property, testate succession, or
intestate succession, including the proceeds of insurance,
including accidental death benefits, on the life of the decedent
and benefits payable under a retirement plan in which the
decedent was a participant, exclusive of the federal social
security system; and
(4) The value of property owned by the surviving spouse at
the decedent's death, reduced by enforceable claims against that
property or that spouse, plus the value of amounts that would
have been includible in the surviving spouse's reclaimable estate
had the spouse predeceased the decedent. But amounts that would
have been includible in the surviving spouse's reclaimable estate
under subsection (b)(2)(iii) are not valued as if he or she were
deceased.
(c) Any transfer or exercise or release of a power of
appointment is excluded from the decedent's reclaimable estate
(i) to the extent the decedent received adequate and full
consideration in money or money's worth for the transfer,
exercise or release, or (ii) if irrevocably made with the written
consent or joinder of the surviving spouse.
(d) Property is valued as of the decedent's death, but
property irrevocably transferred during the two-year period nextpreceding the decedent's death which is included in the
decedent's reclaimable estate under subsection subsections
(b)(2)(i), (ii) and (iv) is valued as of the time of the
transfer. If the terms of more than one of the subparagraphs or
sub-subparagraphs of subsection (b)(2) apply, the property is
included in the augmented estate under the subparagraph or sub-
subparagraph that yields the highest value. For the purposes of
this subsection, an "irrevocable transfer of property" includes
an irrevocable exercise or release of a power of appointment.
(e) (1) Although under this section a payment, item of
property, or other benefit is included in the decedent's
reclaimable estate, 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 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.
(2) The 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'smain 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 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 subsection (d)
of section four of this article, shall order disbursement in
accordance with the determination. If no petition is filed in
the court within the specified time under subsection (a) of
section four of this article or, if filed, the demand for an
elective share is withdrawn under subsection (c) of section four
of this article, the court shall order disbursement to the
designated beneficiary. 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.
(3) Upon petition to the probate 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.
(f) (1) A person who purchases property from a recipient forvalue 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 part to
return the payment, item of property, or benefit nor is liable
under this part 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
included in the decedent's reclaimable estate 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, as provided in section six of
this article.
(2) 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
reclaimable estate, a person who, not for value, receives the
payment, item of property, or any other benefit is obligated to
return that payment, item of property, or benefit, or is
personally liable for the amount of that payment or the value of
that item of property or benefit, as provided in section six of
this article to the person who would have been entitled to it
were that section or part of that section not preempted.
§42-3-3. Right of election personal to surviving spouse.
(a) The right of election may be exercised only by a
surviving spouse who is living when the petition for the elective
share is filed in the court under subsection (a), of this section
(4) of this article. If the election is not exercised by the
surviving spouse personally, it may be exercised on the survivingspouse's behalf by his or her conservator, guardian, or agent
under the authority of a power of attorney.
(b) If the election is exercised on behalf of a surviving
spouse who is an incapacitated person, the court must set aside
that portion of the elective-share and supplemental elective-
share amounts due from the decedent's probate estate and
recipients of the decedent's reclaimable estate under subsections
(b) and (c) of section six of this article and must appoint a
trustee to administer that property for the support of the
surviving spouse. For the purposes of this subsection, an
election on behalf of a surviving spouse by an agent under a
durable power of attorney is presumed to be on behalf of a
surviving spouse who is an incapacitated person. The trustee
must administer the trust in accordance with the following terms
and such additional terms as the court determines appropriate:
(1) Expenditures of income and principal may be made in the
manner, when, and to the extent that the trustee determines
suitable and proper for the surviving spouse's support, without
court order but with regard to other support, income, and
property of the surviving spouse and benefits of medical or other
forms of assistance from any state or federal government or
governmental agency for which the surviving spouse must qualify
on the basis of need;
(2) During the surviving spouses's incapacity, neither the
surviving spouse nor anyone acting on behalf of the surviving
spouse has a power to terminate the trust; but if the surviving
spouse regains capacity, the surviving spouse then acquires the
power to terminate the trust and acquire full ownership of thetrust property free of trust, by delivering to the trustee a
writing signed by the surviving spouse declaring the termination;
(3) Upon the surviving spouse's death, the trustee shall
transfer the unexpended trust property under the residuary
clause, if any, of the will of the predeceased spouse against
whom the elective share was taken, as if that predeceased spouse
died immediately after the surviving spouse, or, if there was no
residuary clause or no will of that predeceased spouse, to the
persons and in such shares as would succeed to that predeceased
spouse's intestate estate as if that predeceased spouse died
immediately after the surviving spouse.
§42-3-3a. Waiver of right to elect; other rights.
(a) The right of election of a surviving spouse and the
rights of the surviving spouse to homestead exemption, exempt
property, 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) He or she did not execute the waiver voluntarily; or
(2) The waiver was unconscionable when it was executed and,
before execution of the waiver, he or she:
(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, anadequate 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, by each spouse in the property of the other and
renunciation by each of all benefits that would otherwise pass to
him or her from the other by intestate succession or by virtue of
any will executed before the waiver or property settlement.
§42-3-4. Proceeding for elective share; time limit.
(a) Except as provided in 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 with six months after the probate of the decedent's will,
whichever limitation later expires. The surviving spouse must
give notice of the time and place set for hearing 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. Except
as provided in subsection (b), the decedent's reclaimable estate,
described in subdivision (2), subsection (b) of section two of
this article, is not included within the augmented estate for the
purpose of computing the elective share, if the petition is filedmore than nine months after the decedent's death.
(b) Within nine months after the decedent's death, the
surviving spouse may petition the court for an extension of time
for making an election. If, within nine months after the
decedent's death, the spouse gives notice of the petition to all
persons interested in the decedent's reclaimable estate, against
whom the spouse chooses to proceed under subsection (d) of this
section, the court for cause shown by the surviving spouse may
extend the time for election. If the court grants the spouse's
petition for an extension, the decedent's reclaimable estate,
described in subdivision (2), subsection (b) of section two of
this article, in the hands of those persons against whom the
spouse chooses to proceed under subsection (d) of this section,
is not excluded from the augmented estate for the purpose of
computing the elective-share and supplemental elective-share
amounts, if the spouse makes an election by filing in the court
and mailing or delivering to the personal representative, if any,
a petition for the elective share within the time allowed by the
extension.
(c) The surviving spouse may withdraw his or her demand for
an elective share 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 section six of this
article. If it appears that a fund or property included in the
augmented estate has not come into the possession of the personalrepresentative, 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 he or she would have been
under section two 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.
NOTE: The purpose of this bill is to make technical
corrections to existing law relating to intestate succession and
the right of a surviving spouse to his or her elective share.
The bill clarifies that whoever would have received property
under a decedent's will if the decedent's former spouse had
actually predeceased the decedent shall receive the former
spouse's share of the decedent's estate, whether such grant is
provided for in a residuary or preresiduary clause of the
decedent's will. The bill also clarifies that only divorces and
annulments occurring after June 5, 1992 revoke those provisions
in a will relating to the former spouse, rather than resulting in
the revocation of the entire will, as was the law prior to June
5, 1992. The bill also clarifies that a spouse may elect against
either the will of a decedent or the intestate share if there was
no will. The bill would also amend existing law to require that
a surviving spouse, in petitioning a court for an extension of
time for exercising his or her elective share right, give notice
of such extension petition only to those persons against whom he
or she chooses to proceed, rather than to all persons interested
in the decedent's reclaimable estate.