Senate Bill No. 419
(By Senators Oliverio and Kimble)
[Originating in the Committee on the Judiciary;
reported March 2, 1995.]
A BILL to amend and reenact section one, article one, chapter
forty-two of the code of West Virginia, one thousand nine
hundred thirty-one, as amended; and to amend and reenact
sections one, two, four and six, article three of said
chapter, all relating to the laws of descent and
distribution; defining terms for purposes of descent
provisions; redefining the term "beneficiary"; right to
elective share of surviving spouse; revising valuations of
elective share; providing for the augmented estate;
excluding certain powers of appointment, property or
property rights, proceeds of insurance, pension, profit
sharing, retirement and other benefit plans and other
transfers made by a decedent within two years preceding his
or her death from augmented estate; payor or third party reliance on governing instrument; payment of funds or
transfer or deposit of property to court; filing fee
discretionary; discharge of payor or third party; liability
of payor or third party upon receipt of written notice of
petition for elective share; where notice to be mailed or
served; rights of bona fide purchaser of property from
recipient of assets; proceedings for elective share; service
of petition; written notice of time and place for hearing;
exclusions of portions of decedent's estate for purposes of
satisfying certain elective share amounts; and clarifying
liability of others for elective share entitlement.
Be it enacted by the Legislature of West Virginia:
That section one, article one, chapter forty-two of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, be amended and reenacted; and that sections one, two,
four and six, article three of said chapter be amended and
reenacted, all to read as follows:
ARTICLE 1. DESCENT.
§42-1-1. General definitions.
Subject to additional definitions contained in the
subsequent articles that are applicable to specific articles,
parts or sections, and unless the context otherwise requires in
(1) "Agent" includes an attorney-in-fact under a durable or
nondurable power of attorney, an individual authorized to make
decisions concerning another's health care and an individual
authorized to make decisions for another under a natural death
(2) "Beneficiary" as it relates to a trust beneficiary,
includes a person who has any present or future interest, vested
or contingent, and also includes the owner of an interest by
assignment or other transfer; as it relates to a charitable
trust, includes any person entitled to enforce the trust; as it
relates to a "beneficiary of a beneficiary designation", refers
to a beneficiary of an account with POD designation, of a
security registered in beneficiary form (TOD) or other nonprobate
transfer at death; and, as it relates to a "beneficiary
designated in a governing instrument", includes a grantee of a
deed, a devisee, a trust beneficiary, a beneficiary of a
beneficiary designation or a person in whose favor a power of
attorney or a power held in any individual, fiduciary or
representative capacity is exercised.
(3) "Court" means the county commission or branch in this
state having jurisdiction in matters relating to the affairs of
(4) "Conservator" means a person who is appointed by a court
to manage the estate of a protected person.
(5) "Descendant" of an individual means all of his or her
descendants of all generations, with the relationship of parent
and child at each generation being determined by the definition
of child and parent contained in this code.
(6) "Devise" when used as a noun, means a testamentary
disposition of real or personal property and, when used as a
verb, means to dispose of real or personal property by will.
(7) "Devisee" means a person designated in a will to receive
a devise. In the case of a devise to an existing trust or
trustee, or to a trustee on trust described by will, the trust or
trustee is the devisee and the beneficiaries are not devisees.
(8) "Distributee" means any person who has received property
of a decedent from his or her personal representative other than
as a creditor or purchaser. A testamentary trustee is a
distributee only to the extent of distributed assets or increment
thereto remaining in his or her hands. A beneficiary of a
testamentary trust to whom the trustee has distributed property
received from a personal representative is a distributee of the
personal representative. For the purposes of this provision,
"testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.
(9) "Estate" includes the property of the decedent, trust or
other person whose affairs are subject to this code as originally
constituted and as it exists from time to time during
(10) "Exempt property" means that property of a decedent's
estate which is provided for in section forty-eight, article VI
of the constitution.
(11) "Fiduciary" includes a personal representative,
guardian, conservator and trustee.
(12) "Foreign personal representative" means a personal
representative appointed by another jurisdiction.
(13) "Formal proceedings" means proceedings conducted before
a judge with notice to interested persons.
(14) "Governing instrument" means a deed, will, trust,
insurance or annuity policy, account with POD designation,
security registered in beneficiary form (TOD), pension,
profit-sharing, retirement or similar benefit plan, instrument
creating or exercising a power of appointment or a power of
attorney or a donative, appointive or nominative instrument of
any other type.
(15) "Guardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to
testamentary or court appointment, but excludes one who is merely
a guardian ad litem.
(16) "Heirs" means persons, including the surviving spouse
and the state, who are entitled under the statutes of intestate
succession to the property of a decedent.
(17) "Informal proceedings" mean those conducted without
notice to interested persons by an officer of the court acting as
a registrar for probate of a will or appointment of a personal
(18) "Interested person" includes heirs, devisees, children,
spouses, creditors, beneficiaries and any others having a
property right in or claim against a trust estate or the estate
of a decedent, ward or protected person. It also includes
persons having priority for appointment as personal
representative and other fiduciaries representing interested
persons. The meaning as it relates to particular persons may
vary from time to time and must be determined according to the
particular purposes of, and matter involved in, any proceeding.
(19) "Issue" of a person means descendant as defined in
subdivision (5) of this section.
(20) "Joint tenants with the right of survivorship" and "community property with the right of survivorship" includes
coowners of property held under circumstances that entitle one or
more to the whole of the property on the death of the other or
others, but excludes forms of coownership registration in which
the underlying ownership of each party is in proportion to that
(21) "Lease" includes an oil, gas or other mineral lease.
(22) "Letters" includes letters testamentary, letters of
guardianship, letters of administration and letters of
(23) "Minor" means a person who is under eighteen years of
(24) "Mortgage" means any deed of trust, conveyance,
agreement or arrangement in which property is encumbered or used
(25) "Nonresident decedent" means a decedent who was
domiciled in another jurisdiction at the time of his or her
(26) "Parent" includes any person entitled to take, or who
would be entitled to take if the child died without a will, as a
parent under this code by intestate succession from the child
whose relationship is in question and excludes any person who is only a stepparent, foster parent or grandparent.
(27) "Payor" means a trustee, insurer, business entity,
employer, government, governmental agency or subdivision or any
other person authorized or obligated by law or a governing
instrument to make payments.
(28) "Person" means an individual or an organization.
(29) "Personal representative" includes executor,
administrator, successor personal representative, special
administrator and persons who perform substantially the same
function under the law governing their status. "General personal
representative" excludes special administrator.
(30) "Petition" means a written request to the court for an
order after notice.
(31) "Proceeding" includes action at law and suit in equity.
(32) "Property" includes both real and personal property or
any interest therein and means anything that may be the subject
(33) "Security" includes any note, stock, treasury stock,
bond, debenture, evidence of indebtedness, certificate of
interest or participation in an oil, gas or mining title or lease
or in payments out of production under such a title or lease,
collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly
known as a security or any certificate of interest or
participation, any temporary or interim certificate, receipt or
certificate of deposit for, or any warrant or right to subscribe
to or purchase, any of the foregoing.
(34) "Settlement" in reference to a decedent's estate,
includes the full process of administration, distribution and
(35) "State" means a state of the United States, the
District of Columbia, the Commonwealth of Puerto Rico or any
territory or insular possession subject to the jurisdiction of
the United States.
(36) "Successor personal representative" means a personal
representative, other than a special administrator, who is
appointed to succeed a previously appointed personal
(37) "Successors" means persons, other than creditors, who
are entitled to property of a decedent under his or her will or
(38) "Survive" means that an individual has neither
predeceased an event, including the death of another individual,
nor is deemed to have predeceased an event. The term includes its derivatives, such as "survives", "survived", "survivor" and
(39) "Surviving spouse" means the person to whom the
decedent was married at the time of the decedent's death.
(40) "Testacy proceeding" means a proceeding to establish a
will or determine intestacy.
(41) "Testator" includes an individual of either sex.
(42) "Trust" includes an express trust, private or
charitable, with additions thereto, wherever and however created.
The term also includes a trust created or determined by judgment
or decree under which the trust is to be administered in the
manner of an express trust. The term excludes other constructive
trusts and excludes resulting trusts, conservatorships, personal
representatives and custodial arrangements, including that
relating to gifts or transfers to minors, dealing with special
custodial situations, business trusts providing for certificates
to be issued to beneficiaries.
(43) "Trustee" includes an original, additional or successor
trustee, whether or not appointed or confirmed by court.
(44) "Will" includes codicil and any testamentary instrument
that merely appoints an executor, revokes or revises another
will, nominates a guardian or expressly excludes or limits the right of an individual or class to succeed to property of the
decedent passing by intestate succession.
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 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
If the decedent and the spouseThe elective-share
were married to each otherpercentage 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), section two of this article, 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), section six of this article, is less than
twenty-five thousand dollars, the surviving spouse is entitled to
a supplemental elective-share amount equal to twenty-five
thousand dollars, minus the sum of the amounts described in said
sections. The supplemental elective-share amount is payable from
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.
(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
(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
(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 created by the decedent
during the marriage and held by the decedent alone if the
decedent held that power immediately before his or her death;
(ii) Property, to the extent of the decedent's contribution to it during the marriage, as a percentage of the whole, by which
the property is 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;
(iii) 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 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 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; or
(C) 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.
(c) Any transfer 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. Life insurance,
accident insurance, pension, profit sharing, retirement and other
benefit plans payable to persons other than the decedent's
surviving spouse or the decedent's estate is also excluded.
(d) Property is valued as of the decedent's death, but property irrevocably transferred during the two-year period next
preceding the decedent's death which is included in the
decedent's reclaimable estate under paragraph (iii), subdivision
(2), subsection (b) of this section is valued as of the time of
the transfer. If the terms of more than one of the paragraphs or
subparagraphs of subdivision (2), subsection (b) of this section
apply, the property is included in the augmented estate under the
paragraph or subparagraph that yields the highest value.
(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 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
only liable for actions taken two or more business days after the
payor or other third party has actual receipt of such written notice of an intention to file a petition for the elective share
or that a petition for the elective share has been filed.
Any form of service of notice other than that described in
subdivision (2) of this subsection shall not be sufficient to
impose liability on a payor or other third party for actions
taken pursuant to the governing instrument.
(2) The written notice shall indicate the name of the
decedent, the date of the decedent's death, the name of the
person asserting an interest, the nature of the payment or item
of property or other benefit and a statement that the spouse
intends to file a petition for the elective share or that a
petition for the elective share has been filed.
(3) The written notice 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. Notice to a sales representative of the payor or
other third party shall not constitute notice to the payor or
other third party. 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
availability of such actions under this section shall not prevent
the payor or other third party from taking any other action
authorized by law or the governing instrument. If no probate
proceedings have been commenced, the payor or other third party
shall file with the court a copy of the written notice received
by the payor or other third party, with the payment of funds or
transfer or deposit of property. The court shall not charge a
filing fee to the payor or other third party for any such
payment, transfer or deposit with the court, even if no probate
proceedings have been commenced before such payment, transfer or
deposit. The court shall hold the funds or item of property and,
upon its determination under subsection (d), 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 said section or, if filed,
the demand for an elective share is withdrawn under subsection
(c) of said section, the court shall order disbursement to the designated beneficiary. A filing fee, if any, may be charged
upon disbursement either to the recipient or against the funds or
property on deposit with the court, in the discretion of the
court. Payments, transfers or deposits made to or with the court
discharge the payor or other third party from all claims under
the governing instrument or applicable law for the value of
amounts paid to or items of property transferred to or deposited
with the court.
(4) 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 bona fide purchaser who purchases property from a
recipient, 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
or 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.
§42-3-4. Proceeding for elective share; time limit.
(a) Except as provided in subsection (b) of this section,
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 six months after the probate of the
decedent's will, whichever limitation later expires. The
surviving spouse must serve a copy of the petition for the
elective share on, and must give written 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 may be adversely affected by the taking of
the elective share. The decedent's reclaimable estate, described
in subdivision (2), subsection (b), section two of this article,
is 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.
(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), 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, but
is excluded for the purpose of satisfying the elective share
amount and the supplemental elective share amount under subsections (b) and (c), section six of this article, 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 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 he or she would have been
under section two of this article 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.
§42-3-6. Charging spouse with owned assets and gifts received;
liability of others for balance of elective share.
(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 reclaimable estate:
(1) Amounts included in the augmented estate which pass or
have passed to the surviving spouse by testate or intestate
(2) Amounts included in the augmented estate under
subdivision (3), subsection (b), section two of this article;
(3) Amounts included in the augmented estate which would
have passed to the spouse but were disclaimed; and
(4) Amounts included in the augmented estate under
subdivision (4), subsection (b), section two of this article 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 section one of this
article 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 that
portion of the decedent's reclaimable estate other than amounts
irrevocably transferred within two years before the decedent's
death 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
reclaimable estate are so applied 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 that portion
of the decedent's reclaimable estate in proportion to the value
of their interests therein.
(c) If, after the application of subsections (a) and (b) of
this section, the elective share or supplemental elective-share
amount is not fully satisfied, the remaining portion of the
decedent's reclaimable estate is so applied that liability for
the unsatisfied balance of the elective share or supplemental
elective-share amount is equitably apportioned among the
recipients of that portion of the decedent's reclaimable estate in proportion to the value of their interests therein.
(d) Only original recipients of the reclaimable estate
described in subdivision (2), subsection (b), section two of this
article, and the donees of the recipients of the reclaimable
estate to the extent the original recipients or their 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
proportional part of the reclaimable estate or to pay the value
of the amount for which he or she is liable.