Code of Virginia

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Code of Virginia
Title 38.2. Insurance
Chapter 31. Life Insurance
8/5/2021

Chapter 31. Life Insurance.

Article 1. General Provisions.

§ 38.2-3100. Scope of chapter.

Except as otherwise provided, this chapter applies to insurers transacting life insurance and the granting of annuities, and to life insurance and annuities as defined in §§ 38.2-102 through 38.2-107.1.

1952, c. 317, § 38.1-431; 1986, c. 562; 1994, c. 316.

§ 38.2-3100.1. Forms of insurance authorized.

A. Life insurance and annuities shall be issued only in the following forms:

1. Individual life insurance and annuities; or

2. Group life insurance and annuities.

B. Pursuant to the authority granted by § 38.2-223, the Commission may promulgate such regulations as may be necessary or appropriate to govern insurers' practices with regard to Acquired Immunodeficiency Syndrome (AIDS) or presence of the Human Immunodeficiency Virus (HIV), including advertising practices, underwriting practices, policy provisions, claim practices, or other practices with regard to individual or group life insurance and annuities, delivered or issued for delivery in the Commonwealth of Virginia and certificates or evidences of coverage, issued under any contract delivered or issued for delivery in the Commonwealth of Virginia.

1989, c. 653.

§ 38.2-3100.2. Funding agreements.

A. Any insurer that is licensed to write life insurance or annuities in the Commonwealth may deliver, or issue for delivery, funding agreements in the Commonwealth.

B. As used in this section "funding agreement" is inclusive but not limited to guaranteed investment contracts, guaranteed interest contracts, unallocated group contracts, investment contracts, or other similar instrument by whatever name, and means an agreement that authorizes the insurer to accept funds and that provides for an accumulation of funds for the purpose of making one or more payments in fixed or variable amounts, or in both, that are not based on mortality or morbidity contingencies.

C. Funding agreements may be issued to persons to fund (i) benefits under any employee benefit plan as defined in the federal Employee Retirement Income Security Act of 1974 (29 U.S.C. § 1002 (3)) maintained in the United States or a foreign country; (ii) the activities of any organization exempt from taxation under section 501(c) of the Internal Revenue Code or any similar organization in any foreign country; (iii) any program of the government of the United States, the government of any state, foreign country, or political subdivision thereof; (iv) any agreement providing for one or more payments in satisfaction of a claim; (v) any program of any individual or entity that has assets in excess of $25,000,000; or (vi) any program of any individual or entity that is registered with the federal Securities and Exchange Commission.

D. Amounts paid to the insurer and proceeds applied under optional modes of settlement under a funding agreement may be allocated by the insurer to its general account and to one or more separate accounts. The assets of any such separate account shall not be chargeable with liabilities arising out of any other business that the insurer conducts. Where separate accounts are not chargeable with liabilities arising out of any other business of the insurer, a risk charge shall be paid on not less than a quarterly basis from the respective separate account to the general account to provide appropriate compensation and to fund an appropriate reserve, if any, for the risks to the general account.

E. No licensed insurer shall make an agreement in the Commonwealth providing for the allocation of funding agreement amounts to a separate account until such insurer has filed with the Commission a statement as to its methods of operation of such separate account and the Commission has approved such statement. Subject to the approval of the Commission, any such statement may apply to one or more groups of separate accounts classified by investment policy, number or kinds of separate account participants, methods of distribution of such agreements or otherwise. In determining whether or not to approve any such statement, the Commission shall consider, among other things, the history, reputation and financial stability of the insurer and the character, experience, responsibility, competence, and general fitness of the officers and directors of the insurer. An amendment of any such statement that changes the investment policy of a separate account shall be treated as an original filing.

F. A funding agreement delivered or issued for delivery in the Commonwealth shall not qualify as or be considered to be life insurance, an annuity, or any other form of insurance defined and classified in Article 2 (§ 38.2-101 et seq.) of Chapter 1 of this title, but shall constitute transacting an insurance business in the Commonwealth.

G. For any funding agreement assets held in the insurer's general account, or for any other obligations due under the funding agreement from the insurer's general account, the funding agreement shall be treated as an insurance contract, and the holder of the funding agreement shall be entitled to the same priority of distribution as other policyholders for the purposes of clause (ii) of subdivision B 1 of § 38.2-1509.

H. Any domestic insurer that has established separate accounts in connection with funding agreements and has allocated funds to such separate accounts shall file with the Commission, in addition to the annual statement required by § 38.2-1300, any other periodic or special reports the Commission prescribes.

I. An insurer that has established a separate account pursuant to this section shall not transfer any assets to such separate account from any of its other accounts, including its general account, unless the transfer to such separate account is authorized by the Commission.

2004, c. 254; 2008, c. 216.

§ 38.2-3100.3. Requirements of life insurance or annuity contracts used to fund preneed funeral contracts.

A. For purposes of this section, "preneed funeral contract" means any agreement where payment is made by the insured prior to the receipt of services or supplies contracted for, which evidences arrangements prior to death for (i) the providing of funeral services or (ii) the sale of funeral supplies.

B. Each individual and group life insurance policy issued or issued for delivery in Virginia, each individual and group annuity contract issued or issued for delivery in Virginia, and each certificate issued in connection with a group life insurance policy or group annuity contract issued or issued for delivery in Virginia shall include a provision specifying the means by which face amount adjustments will be made and benefits payable upon death will be adjusted, according to the provisions of subsection C of § 54.1-2820, when such a policy or contract will be used to fund a preneed funeral contract.

C. Each insurer proposing to issue individual or group life insurance policies or individual or group annuity contracts in Virginia for purposes of funding preneed funeral contracts shall clearly disclose the intended purpose and market for such policies and contracts when submitting the forms with the Commission for approval, in accordance with § 38.2-316.

2009, c. 653.

§ 38.2-3101. Legal reserve insurers.

Any life insurer, association or society whose policies or certificates are required to contain any provision that a person insured shall, upon surrender of the policy during his lifetime, receive a surrender value, either in cash, paid-up insurance, or extended insurance, shall be regarded as a "legal reserve insurer," and shall maintain a reserve calculated in accordance with the provisions of Article 10 (§ 38.2-1365 et seq.) of Chapter 13. Nothing in this section shall be construed to apply to any insurer in the transaction of industrial sick benefit insurance as defined in § 38.2-3544, nor to fraternal benefit societies.

Code 1950, § 38-389; 1952, c. 317, § 38.1-432; 1986, c. 562; 2014, c. 571.

§ 38.2-3102. Domestic insurers prohibited from insuring lives and persons of residents of "reciprocal states.".

A. As used in this section, "reciprocal state" means a state whose laws prohibit its domestic insurers from insuring the lives or persons of residents of this Commonwealth unless the insurer is licensed in this Commonwealth. The prohibition may be subject to exceptions similar to those set forth in subsection C of this section.

B. Subject to the exceptions set forth in subsection C of this section, a domestic insurer shall not enter into an insurance contract upon the life or person of a resident of a reciprocal state unless the insurer is licensed in that state.

C. The following are exceptions to the provisions of subsection B of this section:

1. Contracts entered into when the person insured, or proposed to be insured, is, at the time he signs the application, personally present in a state where the insurer is licensed;

2. Certificates issued under any lawfully issued group life or group accident and sickness policy, when the group policy is entered into in a state where the insurer is licensed;

3. Contracts made pursuant to a pension or retirement plan of an employer, when the contracts are applied for in a state where the employer is personally present or doing business and where the insurer is also licensed; or

4. Contracts renewed, reinstated, converted, or continued in force, with or without modification, that are otherwise lawful and that were not originally executed in violation of this section.

Code 1950, § 38-364; 1952, c. 317, § 38.1-433; 1986, c. 562.

§ 38.2-3103. Fraudulent procurement of policy; penalty.

A. No person shall knowingly secure, attempt to secure or cause to be secured a life insurance policy on any person who is not in an insurable condition by means of misrepresentations or false or fraudulent statements.

B. An insurance agent who violates this section shall be subject to penalties under § 38.2-1831 in addition to the penalties of § 38.2-218.

Code 1950, § 38-369; 1952, c. 317, § 38.1-434; 1986, c. 562.

§ 38.2-3104. No policy to be issued purporting to take effect more than six months before application made; conversion permitted.

A. No life insurance policy delivered or issued for delivery in this Commonwealth shall be backdated more than six months from the date the written application for the insurance was made if the premium on the policy is less than the premium that would be payable on the policy, as determined by the nearest birthday of the insured when the application was made.

B. Neither the provisions of subsection A of this section nor any other provision of general law shall prohibit the conversion or exchange to some form of life insurance dated back to become effective at an age not less than the insured's age at his nearest birthday on the date of issue of the existing contract for:

1. A policy insuring one person for a policy insuring another person dated not earlier than the original policy exchanged;

2. The conversion of any existing life insurance policy; or

3. Any deferred annuity contract purchased by a consideration payable in annual or more frequent installments, and under which no annuity payments have yet been made.

The exchanged or converted form of life insurance shall not exceed the greater of (i) the amount of insurance under the existing policy or (ii) the amount of insurance that the premium or consideration paid for the existing policy or contract would have purchased at the insured's age on his nearest birthday at the date of issue of the existing policy or contract.

Code 1950, § 38-363; 1952, c. 317, § 38.1-435; 1956, c. 417; 1980, c. 205; 1986, c. 562.

§ 38.2-3105. What contracts with respect to life insurance may be made by minors.

A. A minor who is at least fifteen years of age:

1. Shall be competent to contract for life insurance upon his own life for his own benefit or for the benefit of his ascending or descending kindred, spouse, brothers or sisters;

2. May exercise every right, privilege and benefit provided by any life insurance policy on his own life, subject to the foregoing limitations as to designation of beneficiary; and

3. Shall not be permitted to recover any premiums paid on the policy solely because he is a minor.

B. If the minor resides with at least one of his parents, the application for the policy shall be approved in writing by the parent with whom he resides. No promissory note or other evidence of debt given by a minor in payment of any first year premium on a policy shall be validated by this section.

C. Any such minor shall be competent to give a valid discharge for any benefit accruing or money payable under the policy, and to create liens on the policy in favor of the insurer issuing the policy for money borrowed or for unpaid premiums and interest on the policy. However, any beneficiary or beneficiaries named in the policy who are then at least fifteen years of age shall unite in the discharge or in the instrument creating the lien.

Code 1950, § 38-10; 1952, c. 317, § 38.1-436; 1960, c. 31; 1986, c. 562.

§ 38.2-3106. Suicide and execution not grounds of defense; exception.

A. Except as provided in subsection B of this section, the fact that an insured committed suicide, or was executed under law, shall not be a defense in any action, motion or other proceeding on a life insurance policy that (i) was issued to any person residing in this Commonwealth at the time of issuance, or (ii) is otherwise subject to the laws of this Commonwealth, to recover for the death of that person.

B. An express provision in the body of the policy limiting the liability of the insurer to an insured who, whether sane or insane, dies by his own act within two years from the date of the policy shall be valid but the insurer shall be obligated to return or pay at the least the amount of the premium paid for the policy.

Code 1950, § 38-365; 1952, c. 317, § 38.1-437; 1986, c. 562.

§ 38.2-3107. Incontestability of certain policies.

A. No life insurance policy shall be contestable after it has been in force during the lifetime of the insured for two years from its date, except for nonpayment of premiums.

B. Provisions relating to benefits in event of disability, and provisions granting additional insurance specifically against death by accident or accidental means may be exempted in an incontestability provision.

Code 1950, § 38-366; 1952, c. 317, § 38.1-438; 1962, c. 139; 1986, c. 562.

§ 38.2-3108. Misstatement of age.

Each life insurance policy shall contain a provision that, if at any time before final settlement under the policy the age of the insured, or the age of any other person if considered in determining the premium, is found to have been misstated, the amount payable under the policy shall be the amount that the premium would have purchased at the correct age at the time the policy was issued.

Code 1950, § 38-366; 1952, c. 317, § 38.1-439; 1986, c. 562.

§ 38.2-3109. Contestability of reinstated policy.

Reinstatement of a life insurance policy shall not affect the running of the contestable period except as provided in this section. A life insurance policy reinstated after July 1, 1986, regardless of whether the original policy was issued before or after July 1, 1986, shall be contestable on account of fraud or misrepresentation of any material fact pertaining to the reinstatement contained in a written application for reinstatement, or in any written statement supplemental to the application for reinstatement, only for the same period after reinstatement as the policy provides for contestability after original issue.

Code 1950, § 38-366.1; 1950, p. 181; 1952, c. 317, § 38.1-440; 1986, c. 562.

§ 38.2-3110. Incontestability not applicable to excluded or restricted coverage.

Any life insurance policy provision stating that the policy shall be incontestable after a specified period shall preclude only a contest of the validity of the policy, and shall not preclude the assertion at any time of defenses based upon provisions in the policy that exclude or restrict coverages, whether or not those restrictions or exclusions are excepted in the incontestability provision.

1952, c. 317, § 38.1-441; 1986, c. 562.

§ 38.2-3111. Assignment of life insurance policies.

No life insurance policy shall be taken out by the insured or by a person having an insurable interest in the insured's life for the mere purpose of assignment. A policy may be assigned whether or not the assignee has an insurable interest in the life insured unless the policy provides otherwise.

Code 1950, § 38-367; 1952, c. 317, § 38.1-442; 1962, c. 590; 1986, c. 562.

§ 38.2-3111.1. Annuity contract purchased to fund retirement benefits; transfer subject to Commission approval.

A. As used in this section:

"Employer" means a person doing business in or operating within the Commonwealth who employs a resident of the Commonwealth to work for wages or a salary or on commission and includes any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" does not include the Commonwealth or any of its agencies, institutions, or political subdivisions or any public body.

"Pension plan" has the same meaning ascribed to that term in § 3(2) of ERISA.

"Retirement annuity contract" means an allocated or unallocated group annuity contract that is issued or issued for delivery by an insurer to an employer or a pension plan, pension plan sponsor, or affiliate of such employer, pension plan, or pension plan sponsor, for the purpose of providing retirement benefits to employees or retirees of the employer under a defined benefit plan and that (i) is issued or issued for delivery in the Commonwealth or (ii) affects retired employees residing in the Commonwealth who are certificate holders or beneficiaries of a contract if the Commission has jurisdiction over the insurer issuing the contract.

B. On or after July 1, 2018, no retirement annuity contract shall be transferred to or assumed by another insurer unless:

1. The transfer is made to an assuming insurer that has a rating equivalent of A or better from two or more nationally recognized rating agencies; or

2. The transfer to the assuming insurer is approved by the Commission, which approval shall not be granted unless the assuming insurer meets all of the requirements of § 38.2-1024.

C. If the Commission determines that an insurer has violated this section or any order or regulation adopted hereunder, the Commission, after notice and opportunity to be heard, may impose a penalty in accordance with §§ 38.2-218 and 38.2-219.

2018, c. 847.

§ 38.2-3112. Designation of testamentary trustee as beneficiary.

A. A life insurance policy may designate as beneficiary a trustee or trustees named or to be named by will if the designation is made in accordance with the provisions of the policy and the requirements of the insurer issuing the policy.

B. A trustee may qualify immediately after probate of the will. Upon appointment and qualification of a trustee, the proceeds of the insurance shall be paid to the trustee to be held and disposed of under the terms of the will. If there is no valid will appointing a trustee or if the trust provided by the will is invalid for any other cause, the designation of a trustee as beneficiary of the policy shall be void. If no qualified trustee makes claim to the proceeds from the insurer within one year after the death of the insured, or if satisfactory evidence is furnished to the insurer within the one-year period showing that no trustee can qualify to receive the proceeds, payment shall be made by the insurer to the executors, administrators or assigns of the insured, unless otherwise provided for by the owner of the policy, if the owner is other than the insured, or by the insured by agreement with the insurer.

C. The proceeds of the insurance as collected by a trustee shall not be subject to debts of the insured nor to estate taxes to any greater extent than if the proceeds were payable to any other named beneficiary other than the estate of the insured.

D. For purposes of trust administration, the proceeds shall be subject to the court's jurisdiction over the trust as in any other testamentary trust, but the proceeds shall not be considered as payable to the estate of the insured.

E. This section does not authorize payment of policy proceeds to any testamentary trustee who is not otherwise qualified to act as a testamentary trustee. A qualified substitute trustee may be appointed to perform the trust provided by the will.

F. Enactment of this section shall not be construed as casting any doubt upon the validity of any previous life insurance policy beneficiary designations naming trustees of a trust established or to be established by will.

G. As used in this section, "life insurance policy" shall include other types of contracts under which proceeds become payable on the death of the testator to the end that interests other than those described as "life insurance" may be made payable or transferred to a trustee named or to be named in a will in the same manner and to the same extent they could be made payable to or transferable to any other person.

1968, c. 524, § 38.1-408.1; 1968, c. 553, § 38.1-442.1; 1986, c. 562.

§ 38.2-3113. Variable life insurance and variable annuities; separate accounts to be established; authority to issue; reports; special voting rights and procedures for owners.

A. Each domestic insurer that issues life insurance or annuities providing for payments that vary directly according to investment experience shall establish one or more separate accounts in connection with these types of life insurance or annuities. All amounts received by the insurer that are required by contract to be applied to provide for variable payments shall be added to the appropriate separate account. The assets of any such separate account shall not be chargeable with liabilities arising out of any other business the insurer may conduct. Any surplus or deficit that may arise in any separate account by virtue of mortality experience shall be adjusted by withdrawals from or additions to the account so that the assets of the account shall always at least equal the assets required to satisfy the insurer's obligations for the variable payments.

B. A foreign or alien insurer licensed to do business in this Commonwealth may be licensed to deliver or issue for delivery life insurance or annuity contracts in this Commonwealth providing for payments which vary directly according to investment experience only if authorized to issue such life insurance or annuity contracts under the laws of its domicile.

C. No domestic, foreign, or alien insurer shall be licensed to deliver or issue for delivery variable life insurance or variable annuity contracts in this Commonwealth, until the insurer has satisfied the Commission that its condition and methods of operation in connection with the issuance of variable life insurance or variable annuity contracts will not render its operation hazardous to the public or to its policyholders in this Commonwealth. In determining the qualification of an insurer to deliver or issue for delivery such variable life insurance or variable annuity contracts in this Commonwealth, the Commission shall consider, but shall not be limited to considering, the following: (i) the history and financial condition of the insurer; (ii) the character, responsibility, and general fitness of the officers and directors of the insurer; and, (iii) in the case of a foreign or alien insurer, whether the regulation provided by the laws of its domicile provides a degree of protection to policyholders and the public substantially equal to that provided by this section and any rules and regulations issued by the Commission.

D. Each insurer that delivers or issues for delivery variable life insurance or variable annuity contracts in this Commonwealth shall file with the Commission, in addition to the annual statement required by § 38.2-1300, any other periodic or special reports the Commission prescribes.

E. The provisions of this section shall not apply to any contracts or policies which do not provide for payments which vary directly according to investment experience.

F. Any domestic life insurer that establishes one or more separate accounts pursuant to this section may amend its charter to provide for special voting rights and procedures for the owners of variable life insurance or variable annuity contracts relating to investment policy, investment advisory services and selection of certified public accountants, in relation to the administration of the assets in any such separate account. This subsection shall not in any way affect existing laws pertaining to the voting rights of the insurer's policyholders.

1966, c. 289, § 38.1-443; 1976, c. 562; 1986, c. 562.

§ 38.2-3113.1. Modified guaranteed life insurance and modified guaranteed annuities; separate accounts; authority to issue; statements required; regulations to be issued; approval expenses.

A. For purposes of this section, "modified guaranteed contracts" means modified guaranteed life insurance or modified guaranteed annuity contracts. The provisions of this section apply only to such contracts.

B. A domestic insurer that issues modified guaranteed contracts may establish one or more separate accounts in connection with these types of contracts. All amounts received by the insurer to provide benefits under contracts for which separate accounts have been established shall be added to the appropriate separate account. Unless provided otherwise in the contract and approved by the Commission in its discretion, the assets of any such separate account shall be chargeable with liabilities arising out of any other business the insurer may conduct.

C. A foreign or alien insurer licensed to do business in this Commonwealth may be licensed to deliver or issue for delivery modified guaranteed contracts in this Commonwealth only if authorized to issue such contracts under the laws of its domicile.

D. No domestic, foreign, or alien insurer shall be licensed to deliver or issue for delivery modified guaranteed contracts in this Commonwealth, until the insurer has satisfied the Commission that its condition and methods of operation in connection with the issuance of modified guaranteed contracts will not render its operation hazardous to the public or to its policyholders in this Commonwealth. In determining the qualifications of an insurer to deliver or issue for delivery such modified guaranteed contracts in this Commonwealth, the Commission shall consider, but shall not be limited to considering, the following: (i) the history and financial condition of the insurer; (ii) the character, responsibility, and general fitness of the officers and directors of the insurer; and (iii) in the case of a foreign or alien insurer, whether the regulation provided by the laws of its domicile provides a degree of protection to policyholders and the public substantially equal to that provided by this section and any rules and regulations issued by the Commission.

E. Each insurer that has established any separate accounts in connection with modified guaranteed contracts, and delivers or issues for delivery modified guaranteed contracts in this Commonwealth shall file with the Commission, in addition to the annual statement required by § 38.2-1300, any other periodic or special reports the Commission prescribes.

F. Any modified guaranteed contract delivered or issued for delivery in this Commonwealth, and any certificate evidencing nonforfeiture benefits that vary according to a market-value adjustment formula issued pursuant to any life insurance or annuity contract issued on a group basis shall (i) contain, on its first page, a prominent statement that the nonforfeiture values may increase or decrease, based on the market-value adjustment formula in the contract, and (ii) for modified guaranteed life insurance only, be accompanied by a written disclosure to the purchaser of the policy's "interest adjusted net cost index" in compliance with regulations or forms approved by the Commission.

G. The Commission may promulgate reasonable regulations applicable to modified guaranteed contracts and to any separate accounts that may be established in connection with such contracts.

H. Reasonable actuarial expenses incurred in connection with approval of a modified contract shall be paid by the person seeking approval of such a contract.

1992, c. 210.

§ 38.2-3113.2. Qualified charitable gift annuities; issuance not business of insurance; disclosures to donors; unfair trade practices provisions not applicable.

A. The issuance of a qualified charitable gift annuity does not constitute engaging in the business of insurance in this Commonwealth. A charitable gift annuity issued before the effective date of this section is a qualified charitable gift annuity for purposes of this title if it meets the requirements of § 501 (m) (5) of the Internal Revenue Code of 1986 (26 U.S.C. § 501 (m) (5)) and § 514 (c) (5) of the Internal Revenue Code of 1986 (26 U.S.C. § 514 (c) (5)), and the issuance of that charitable gift annuity does not constitute engaging in the business of insurance in this Commonwealth.

B. When entering into an agreement for a qualified charitable gift annuity, the charitable organization shall disclose to the donor in writing in the annuity agreement that a qualified charitable gift annuity is not insurance under the laws of this Commonwealth and is neither subject to regulation by the Commission nor protected by the Virginia Life, Accident and Sickness Insurance Guaranty Association. The notice provisions required by this subsection shall be in a separate paragraph in a print size no smaller than that employed in the annuity agreement generally.

C. The solicitation or issuance of a qualified charitable gift annuity does not constitute a violation of the unfair trade practices provisions of Chapter 5 (§ 38.2-500 et seq.) of this title.

1996, c. 425.

§ 38.2-3113.3. Educational loan provisions in life insurance policies.

Educational loan provisions may be included as additional benefits, as part of the policy, or as a rider or as a separate agreement, subject to the following requirements:

1. Any and all necessary eligibility qualifications for an educational loan shall be specified in the life insurance policy, rider or separate agreement. The policy, rider or separate agreement shall also state clearly that the loan will be granted provided the covered individual applying for such loan has satisfied the stated qualifications. Loan eligibility qualifications shall not be more restrictive than the following:

a. The loan applicant is a covered individual under the life insurance policy;

b. The purpose of the loan is to provide funds for a covered individual under the policy, rider or separate agreement, or the dependent of a covered individual under the policy, rider or separate agreement to attend an institution of higher education, a trade school, or a technical school. As used in this section, an "institution of higher education" shall not be defined more restrictively than an accredited institution of higher education that is approved by the U.S. Department of Education. Age eligibility of the individual for whom the educational loan will be used may be limited to an age range no less restrictive than age 15 to age 25, subject to continued life insurance coverage of the covered individual during this duration; and

c. The individual for whose education the loan will be used must attend a qualifying institution at least halftime, determined in a manner consistent with the institution's standards for establishing full-time and half-time attendance, and must maintain an academic record sufficient to demonstrate reasonable progression or advancement.

2. The amount of funds available for an educational loan shall be specified in the policy, rider or separate agreement, and shall be further limited to an amount not to exceed the actual cost of the school or institution during any given year of attendance less other aid received. If the amount available for the educational loan varies by the year of attendance in the school or institution, this shall be so stated and a schedule of annual loan availability by dollar amount shall be included in the policy, rider or separate agreement.

3. The terms of the loan shall be clearly stated in the policy or rider, or the policy or rider shall refer to the availability of a separate document specifying all loan terms upon request of any insured individual. If the terms of the loan are included in a separate document, such document must be filed with the Commission for review. For purposes of this section, "terms of the loan" include, but are not limited to, (i) any and all fees, charges, and interest rates applied to borrowed funds, including a clear statement concerning possible fluctuation of such fees and charges depending upon the applicant's credit worthiness and/or depending upon any sources or indices used to determine such fees, charges or interest rates, (ii) minimum monthly payments, (iii) maximum amount of years for loan repayment, and (iv) policy assignment, if applicable.

4. Any life insurance policy, rider or separate agreement providing for educational loans shall include a prominent disclosure advising the reader of the prudence of obtaining information about educational loans from a variety of sources before making any decision about borrowing funds for financing higher education.

5. No policy, rider or separate agreement providing for educational loans shall be delivered or issued for delivery in this Commonwealth unless a copy of the form has been filed with and approved by the Commission in accordance with § 38.2-316. No advertising material shall be used in the solicitation or promotion of the educational loan feature of a life insurance policy, rider or separate agreement until such material has been filed with and approved by the Commission in the same manner as is required for forms pursuant to § 38.2-316.

2000, c. 173.

§ 38.2-3114. Statements required in variable life insurance and variable annuity contracts and certificates issued pursuant to group variable life insurance and group variable annuity contracts.

Any variable life insurance or variable annuity contract delivered or issued for delivery in this Commonwealth, and any certificate evidencing variable benefits issued pursuant to any life insurance or annuity contract issued on a group basis shall:

1. State the essential features of the procedure to be followed by the insurer in determining the value of benefits or other contractual payments under the contract;

2. State clearly that the benefits may decrease or increase according to the procedure; and

3. State clearly on its first page that the benefits or other contractual payments are on a variable basis.

1966, c. 289, § 38.1-408; 1976, c. 562; 1986, c. 562.

§ 38.2-3115. Interest on life insurance and annuity contract proceeds.

A. If an action to recover the proceeds due under a life insurance policy or annuity contract results in a judgment against the insurer, interest on the judgment at the legal rate of interest shall be paid from (i) the date of presentation to the insurer of proof of death on a life insurance policy or annuity contract or (ii) the date of maturity of an endowment policy to the date judgment is entered.

B. If no action is brought, interest upon the principal sum paid to the beneficiary or policyowner shall be computed daily at an annual rate of two and one-half percent or at the annual rate currently paid by the insurer on proceeds left under the interest settlement option, whichever is greater, commencing (i) from the date of death on a life insurance policy or annuity contract claim; (ii) from the date of receipt of a completed claim form on a variable annuity contract claim; or (iii) from the date of maturity of an endowment contract to the date of payment. The interest shall be added to and become a part of the total sum payable.

C. No insurer shall be required to pay interest computed under this section if the total interest is less than five dollars.

D. This section shall not apply to (i) credit life insurance for which the premium is paid wholly from funds of the creditor with no specific identifiable charge being made to insureds for the insurance and upon which post-death interest on the indebtedness is waived by the creditor in an amount at least equal to the amount of interest that would otherwise be payable under this section; (ii) credit life insurance payable in whole or in part to a creditor that is an affiliate, as defined in § 13.1-725, of the insurer and that does not charge interest on the indebtedness from the date of death of the insured; or (iii) policies or contracts issued prior to July 1, 1977, but shall apply to any renewals or reissues of group life insurance policies or contracts occurring after that date.

1977, c. 264, § 38.1-443.1; 1986, c. 562; 1991, c. 368; 2006, c. 209; 2014, cc. 155, 411.

§ 38.2-3115.1. Accelerated payment of benefits.

A. Except as set forth in subsection C of this section, each insurer issuing a life insurance policy in the Commonwealth may include a policy provision for accelerated payment of benefits to the insured during the lifetime of the insured:

1. If a qualified health care provider or court of competent jurisdiction has determined that the insured is no longer able to perform two of the following activities of daily living: (i) bathing, (ii) dressing, (iii) continence, (iv) eating, (v) toileting, or (vi) transferring; or

2. If a qualified health care provider or court of competent jurisdiction has determined that the insured requires substantial supervision by another person to protect the health and safety of the insured or any other person.

B. The Commission shall adopt appropriate rules and regulations to carry out the intent of this section, and such rules and regulations may also provide for additional options for the accelerated payment of benefits under any other conditions deemed appropriate by the Commission.

C. This section shall not apply to (i) credit life insurance issued pursuant to Chapter 37.1 (§ 38.2-3717 et seq.) of this title, or (ii) policies or contracts issued prior to July 1, 2002, but shall apply to any renewals or reissues of group life insurance policies or contracts occurring after that date.

2002, c. 343.

§ 38.2-3116. Commission to establish standards for simplified and readable life insurance and annuity policies.

A. Pursuant to the authority granted under § 38.2-223, the Commission may issue rules and regulations establishing standards for simplified and readable life insurance policies and annuity contracts. The standards shall apply to all policy forms for annuities as defined in §§ 38.2-106 and 38.2-107 and life insurance as defined in §§ 38.2-102 through 38.2-105.

B. As used in this section, "policy form" means:

1. Any individual life insurance policy, plan or agreement, and any annuity contract delivered or issued for delivery in this Commonwealth;

2. Any policy, certificate or contract, including any riders, endorsements or amendments providing death benefits, delivered or issued for delivery in this Commonwealth by a fraternal benefit society;

3. Any group life insurance policy, contract, plan or agreement, including any riders, endorsements or amendments, delivered or issued for delivery in this Commonwealth, to a group with ten or fewer members; or

4. Any certificate, including any riders, endorsements or amendments, issued under a group life insurance policy delivered or issued for delivery in this Commonwealth.

C. No insurer shall issue a life insurance policy that has been filed with the Commission unless the Commission has determined that the policy form satisfies the readability standards established by the rules and regulations and complies with other statutory requirements.

1986, c. 562.

§ 38.2-3117. Standards for certain policies; prohibited policies.

A. Pursuant to the authority granted under § 38.2-223, the Commission may issue rules and regulations that may include but shall not be limited to policy provisions, definitions, standards for full and fair disclosure and standards for minimum benefits, for variable life insurance policies, universal life insurance policies or other nontraditional types of life insurance policies, annuities and variable annuities.

B. The Commission may prescribe the method of identification of policies and contracts based upon coverage provided.

C. The Commission may issue rules and regulations that specify prohibited policies or policy provisions not otherwise specifically authorized by statute which in the opinion of the Commission are unjust, unfair or unfairly discriminatory to the policyholder, beneficiary, owner, or any other person insured under the policy.

1986, c. 562.

§ 38.2-3117.01. Provision of life insurance information upon notification of insured's death.

Upon receipt of a request for information regarding a deceased person's life insurance policy from a funeral service provider that complies with § 54.1-2818.5, a life insurer doing business in the Commonwealth may provide certain information to the funeral service provider regarding the existence of any life insurance policy issued by the insurer or any affiliated insurer insuring the life of the deceased person identified in the request. The information may include the names and contact information, if available, of any beneficiaries on record under any such policy insuring such life. Nothing in this section shall require a life insurer to provide information that is confidential or protected from disclosure under applicable state or federal law. A life insurer may respond to such a request for information in a manner that is consistent with the terms of any applicable life insurance policy and the life insurer's administrative practices and procedures.

2017, c. 482.

Article 1.1. Use of Retained Asset Accounts.

§ 38.2-3117.1. Definitions.

As used in this article, unless the context requires a different meaning:

"Insurer" means an insurance company licensed in the Commonwealth that offers retained asset accounts for death benefits.

"Policy" means any policy or certificate of insurance that provides a death benefit.

"Retained asset account" means any mechanism whereby the settlement of proceeds payable under a life insurance policy is accomplished by the insurer or an entity acting on behalf of the insurer depositing the proceeds into an account with check or draft writing privileges where those proceeds are retained by the insurer pursuant to a supplementary contract not involving annuity benefits.

2011, cc. 194, 227.

§ 38.2-3117.2. Explanation of settlement options.

The insurer shall provide the beneficiary, at the time a claim is made, written information describing the settlement options available under the policy and how to obtain specific details relevant to the options.

2011, cc. 194, 227.

§ 38.2-3117.3. Supplemental contract.

If the insurer settles benefits through a retained asset account, the insurer shall provide the beneficiary with a supplemental contract that clearly discloses the rights of the beneficiary and the obligations of the insurer under the supplemental contract.

2011, cc. 194, 227.

§ 38.2-3117.4. Disclosures for retained asset accounts to beneficiaries.

The insurer shall provide the following written disclosures to the beneficiary of a policy before the retained asset account is selected, if optional, or established, if not optional:

1. Payment of the full benefit amount is accomplished by delivery of the draft book or check book;

2. One draft or check may be written to access the entire amount, including interest, of the retained asset account at any time;

3. Whether other available settlement options are preserved until the entire balance is withdrawn or the balance drops below the insurer's minimum balance requirements;

4. A statement identifying the account as either a checking account or a draft account and an explanation of how the account works;

5. Information about the account services provided and contact information where the beneficiary may request and obtain more details about such services;

6. A description of fees charged, if applicable;

7. The frequency of statements showing the current account balance, the interest credited, drafts or checks written, and any other account activity;

8. The minimum interest rate to be credited to the account and how the actual interest rate will be determined;

9. The interest earned on the account may be taxable;

10. Retained asset account funds held by insurance companies are not insured by the Federal Deposit Insurance Corporation but are guaranteed by the state guaranty association. The beneficiary should be advised to contact the National Organization of Life and Health Insurance Guaranty Associations via the association's website to learn more about the coverage limitations to the account under a state guaranty association; and

11. A description of the insurer's policy regarding retained asset accounts that become inactive.

2011, cc. 194, 227.

Article 2. Proceeds of Certain Policies.

§ 38.2-3118. Spendthrift trusts created under life insurance policies.

If, under the terms of any life insurance policy or of any written agreement supplemental to a life insurance policy, the proceeds are retained by the insurer at maturity or otherwise, no person entitled to any part of the proceeds, or to any installment of interest due or becoming due, may commute, anticipate, encumber, alienate or assign the proceeds or any part of the proceeds or interest if permission is expressly withheld by the terms of the policy or supplemental agreement. If the life insurance policy or supplemental agreement provides, no payments of interest or principal shall be in any way subject to the person's debts, contracts or engagements, nor to any judicial process to levy upon or attach the interest or principal for payment of those debts, contracts, or engagements.

Code 1950, § 38-115; 1952, c. 317, § 38.1-444; 1986, c. 562.

§ 38.2-3119. Limitation on § 38.2-3118.

A. The provisions of § 38.2-3118 shall not apply to any proportionate part of the proceeds of any such policy or supplemental contract mentioned in § 38.2-3118 arising or resulting from premiums paid by the beneficiary. The proportionate part of the proceeds shall be determined by comparing the total premiums paid for the policy, without interest, with the premiums for the policy, without interest, paid by the beneficiary.

B. Notwithstanding the other provisions of this section, an insurer who (i) has no written notice of any claim that premiums have been paid by the beneficiary and (ii) has no written notice of an adverse claim of any other character under this section, shall be protected in making or withholding payments pursuant to the terms of a policy or supplemental agreement.

C. Notwithstanding the other provisions of this section, upon an insurer's acceptance of proof that premiums have been paid by the beneficiary and the insurer's payment of the corresponding proportionate part of the proceeds of the policy or supplemental agreement, the insurer's payment shall constitute full release of the insurer from all liability with respect to the proportionate part of the proceeds of the policy or supplemental agreement.

Code 1950, § 38-116; 1952, c. 317, § 38.1-445; 1986, c. 562.

§ 38.2-3120. Repealed.

Repealed by Acts 2005, c. 935, cl. 3, effective July 1, 2006.

§ 38.2-3121. Segregation of proceeds not required.

No insurer holding the proceeds of any policy mentioned in § 38.2-3118 shall be required to segregate the proceeds but may hold them as a part of its general corporate funds.

Code 1950, § 38-118; 1952, c. 317, § 38.1-447; 1986, c. 562.

§ 38.2-3122. Proceeds and avails of life insurance policies and annuity contracts free of certain claims.

A. As used in this section, "protected insurance item" means, with respect to a policy of life insurance or annuity issued or issued for delivery in the Commonwealth:

1. The cash surrender value of any such policy;

2. The proceeds of any such policy;

3. The withdrawal value of any optional settlement or deposit with any company made pursuant to the terms of such policy; or

4. All other benefits, indemnities, payments, and privileges of every kind from any such policy.

B. In no case whatsoever shall any protected insurance item be liable to execution, attachment, garnishment, or other legal process in favor of any creditor of:

1. The person whose life is insured by the related policy or contract;

2. The person who can, may, or will receive the benefit of that protected insurance item, provided that such person is the insured or owner of the contract, deposit, indemnity, policy, or settlement or the spouse or intended spouse of, a dependent child of, or any other person dependent on, the insured or owner of the contract, deposit, indemnity, policy, or settlement;

3. The person who owns the related contract, deposit, or policy; or

4. The person who effected the related contract, deposit, or policy.

C. The provisions of subsection B shall not apply to any claim by a creditor with respect to a life insurance policy, annuity contract, or deposit with an insurance company that was taken out, made, or assigned in writing for the benefit of the creditor.

D. Notwithstanding the provisions of subsection B and subject to the applicable statute of limitations, the amount of any premiums or other amounts paid for the related life insurance policy, annuity contract, or deposit with an insurance company that were paid with the intent to defraud creditors, with the interest thereon, shall inure to the benefit of the creditors from the proceeds of the policy, contract, or deposit.

E. The exemption provided by this section shall not apply to any protected insurance item issued or effected during the six months preceding the date that the person claiming the exemption (i) files a voluntary petition in bankruptcy; (ii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceeding; or (iii) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation.

F. The exemption established by this section shall apply to a protected insurance item regardless of whether (i) the right to change the beneficiary thereof is reserved or permitted or (ii) any of the following persons or any of their estates is a contingent beneficiary thereof:

1. The person insured by the related life insurance policy;

2. The person effecting the related life insurance policy or annuity contract;

3. The annuitant of the related annuity contract; or

4. The owner of the related life insurance policy or annuity contract.

Code 1950, § 38-119; 1952, c. 317, § 38.1-448; 1986, c. 562; 2016, c. 274.

§ 38.2-3122.1. Annuity contract purchased to fund retirement benefits; protection from creditor's claims.

A. As used in this section:

"Employer" means a person doing business in or operating within the Commonwealth who employs another to work for wages or a salary or on commission and includes any similar entity acting directly or indirectly in the interest of an employer in relation to an employee. "Employer" does not include the Commonwealth or any of its agencies, institutions, or political subdivisions or any public body.

"ERISA" means the federal Employee Retirement Income Security Act of 1974 (P.L. 93-406, 88 Stat. 829), as amended.

"Pension plan" has the same meaning ascribed to that term in § 3(2) of ERISA.

B. Any interest in or amounts payable to a participant or beneficiary from any allocated or unallocated group annuity contract issued or issued for delivery in the Commonwealth to an employer or a pension plan for the purpose of providing retirement benefits to employees or retirees of the employer under a defined benefit plan, which retirement benefits were protected under ERISA or the Federal Pension Benefit Guaranty Corporation prior to the effective date of the group annuity contract and will not be protected under ERISA or the Federal Pension Benefit Guaranty Corporation on and after the effective date of the group annuity contract, shall be exempt from the claims of all creditors of such participant or beneficiary.

C. The exemption from the claims of creditors provided under subsection B shall not apply to claims arising under a qualified domestic relations order.

D. The exemption from the claims of creditors provided under subsection B shall not apply to any claim by a creditor with respect to an annuity contract that was taken out, made, or assigned in writing for the benefit of the creditor.

E. Notwithstanding the provisions of subsection B and subject to the applicable statute of limitations, the amount of any premiums or other amounts paid for the related annuity contract that were paid with the intent to defraud creditors, with the interest thereon, shall inure to the benefit of the creditors from the proceeds of the policy, contract, or deposit.

F. The exemption provided by this section shall not apply to any protected annuity contract issued or effected during the six months preceding the date that the person claiming the exemption (i) files a voluntary petition in bankruptcy; (ii) becomes the subject of an order for relief or is declared insolvent in any federal or state bankruptcy or insolvency proceeding; or (iii) files a petition or answer seeking for himself any reorganization, arrangement, composition, readjustment, liquidation, dissolution, or similar relief under any statute, law, or regulation.

2018, c. 847.

§ 38.2-3123. Repealed.

Repealed by Acts 2018, c. 304, cl. 2.

§ 38.2-3124. Protection of insurers from creditor's claims.

Notwithstanding § 38.2-3122, any insurer issuing any insurance policy shall be discharged of all liability on that policy by payment of its proceeds in accordance with its terms, unless before payment the insurer receives written notice by or on behalf of a creditor of a claim, stating the amount claimed and the nature of the claim.

Code 1950, § 38-121; 1952, c. 317, § 38.1-450; 1986, c. 562; 2018, c. 304.

§ 38.2-3125. Other rights of beneficiaries and assignees protected.

Since the purpose of §§ 38.2-3122 and 38.2-3122.1 is to confer additional rights, privileges, and benefits upon beneficiaries and assignees of policies, no beneficiary or assignee shall by reason of these sections be divested or deprived of or prohibited from exercising or enjoying any right, privilege, or benefit that he would have or could exercise or enjoy had §§ 38.2-3122 and 38.2-3122.1 not been enacted.

Code 1950, § 38-119; 1952, c. 317, § 38.1-451; 1986, c. 562; 2018, cc. 304, 847.

Article 3. Reserves [Repealed].

§ 38.2-3126. Repealed.

Repealed by Acts 2014, c. 571, cl. 2, effective January 1, 2015.