Senate Bill No. 77
(By Senator Facemire)
[Introduced February 13, 2013; referred to the Committee on the
A BILL to amend and reenact §41-1-6 of the Code of West Virginia,
1931, as amended; and to amend and reenact §42-1-1 of said
code, all relating to automatic revocation of a will upon
legal separation; and excluding from the definition of
"surviving spouse", for purposes of descent and distribution,
a person who is a party to a decree of legal separation.
Be it enacted by the Legislature of West Virginia:
That §41-1-6 of the Code of West Virginia, 1931, as amended,
be amended and reenacted; and that §42-1-1 of said code 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, annulment and legal separation; no revocation by other changes of circumstances.
(a) If after executing a will the testator is divorced,
legally separated or his or her marriage annulled, the divorce,
legal separation 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, legal separation
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. 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, legal separation or annulment means any divorce,
legal separation or annulment which would exclude the spouse as a
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, legal separations,
annulments or remarriages which become effective after June 5,
CHAPTER 42. DESCENT AND DISTRIBUTION.
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 this code:
(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 act.
(2) "Beneficiary" as it relates to a trust beneficiary
includes a person who has
any a present or future interest, vested
or contingent, and also includes the owner of an interest by
assignment or other transfer. As it "beneficiary" relates to a
charitable trust, it includes any person entitled to enforce the
trust. As it "beneficiary" relates to a "beneficiary of a
beneficiary designation", it refers to a beneficiary of an account
with POD designation, of to a security registered in beneficiary
form (TOD) or other nonprobate transfer at death. and, As it
"beneficiary" relates to a "beneficiary designated in a governing instrument", it 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 a 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
(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
denotive, 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
(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 party's
(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 as security.
(25) "Nonresident decedent" means a decedent who was domiciled
in another jurisdiction at the time of his or her death.
(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
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 of
(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
(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 this
(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 except that a
person who is a named party to a decree of legal separation is not
deemed a surviving spouse.
(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
(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.
NOTE: The purpose of this bill is to automatically revoke a
will following a legal separation and to exclude from the
definition of "surviving spouse", for purposes of descent and
distribution, a person who is a party to a decree of legal
Strike-throughs indicate language that would be stricken from
the present law and underscoring indicates new language that would