Title 64.2. Wills, Trusts, and Fiduciaries
Subtitle V. Provisions Applicable to Probate and Nonprobate Transfers
Chapter 22. Uniform Simultaneous Death Act
Chapter 22. Uniform Simultaneous Death Act.
§ 64.2-2200. Definitions.As used in this chapter:
"Co-owners with right of survivorship" includes parties to a joint account, joint tenants, tenants by the entireties, and other co-owners of property held under circumstances that entitle one or more to the whole of the property or account on the death of the other or others.
"Governing instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), or 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.
"Payor" means a trustee, insurer, business entity, employer, government, governmental agency, subdivision, or instrumentality, or any other person authorized or obligated by law or a governing instrument to make payments.
Except as provided in § 64.2-2205, if the (i) title to property, (ii) devolution of property, or (iii) right to elect an interest in property, an augmented estate share or exempt property, or homestead or family allowance depends upon an individual surviving another, an individual who is not established by clear and convincing evidence to have survived the other individual by 120 hours is deemed to have predeceased the other. However, this section does not apply if its application would result in a taking of an intestate estate by the Commonwealth.
Except as provided in § 64.2-2205 for purposes of a donative provision of a governing instrument, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is deemed to have predeceased the event.
Except as provided in § 64.2-2205, if (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by 120 hours, one-half of the property passes as if one had survived by 120 hours and one-half as if the other had survived by 120 hours and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by 120 hours, the property passes in the proportion that one bears to the whole number of co-owners.
In addition to otherwise applicable rules of evidence, the following rules relating to a determination of death and status shall apply:
1. Death occurs when an individual is determined to be dead in accordance with the provisions of § 54.1-2972 or Chapter 23 (§ 64.2-2300 et seq.).
2. A certified or authenticated copy of a death certificate purporting to be issued by a governmental official or agency, domestic or foreign, of the place where the death purportedly occurred is prima facie evidence of the fact, place, date, and time of death and the identity of the decedent.
3. A certified or authenticated copy of any record or report purporting to be issued by a governmental official or agency, domestic or foreign, that an individual is missing, detained, dead, or alive is prima facie evidence of the status of the individual and of the dates, times, identities, circumstances, and places disclosed by the record or report.
4. In the absence of prima facie evidence of death under subdivision 2 or 3, the facts of death may be established by clear and convincing evidence, including circumstantial evidence.
5. In the absence of evidence disputing the time of death stated on a document described in subdivision 2 or 3, such a document that states a time of death 120 hours or more after the time of death of another individual, however the time of death of the other individual is determined, establishes by clear and convincing evidence that the individual survived the other individual by 120 hours.
Survival by 120 hours is not required if:
1. The governing instrument contains language dealing explicitly with (i) simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case, (ii) deaths under circumstances where the order of death cannot be established by proof, or (iii) the marital deduction, or the governing instrument contains a provision to or for the benefit of the decedent's spouse where it is the decedent's intent, as manifested from the governing instrument or external evidence, that the decedent's estate receive the benefit of the federal estate tax marital deduction;
2. The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event, including the death of another individual, for a specified period; but survival of the event, another individual, or the specified period shall be established by clear and convincing evidence;
3. The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under the Uniform Statutory Rule Against Perpetuities (§§ 55.1-124 through 55.1-129); but survival shall be established by clear and convincing evidence; or
4. The application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence.
A. A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this chapter, is not entitled to the payment or item of property, or for having taken any other action in good faith reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice of a claimed lack of entitlement under this chapter. A payor or other third party is liable for a payment made or other action taken after the payor or other third party received written notice of a claimed lack of entitlement under this chapter.
Written notice of a claimed lack of entitlement shall be mailed to the main office or home of the payor or other third party, or to the registered agent of either, by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as process in a civil action. Upon receipt of the written notice of a claimed lack of entitlement, 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 as provided in § 64.2-443 or 64.2-502. The court shall hold the funds or item of property and, upon its determination under this chapter, shall order disbursement in accordance with the determination. Payments, transfers, or deposits made to or with the court discharge the payor or other third party from all claims for the value of amounts paid to or items of property transferred to or deposited with the court.
B. A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this chapter to return the payment, item of property, or benefit, nor liable under this chapter for the amount of the payment or the value of the item of property or benefit. But a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this chapter, is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this chapter.
If this chapter or any part of this chapter is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this chapter, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this chapter or part of this chapter not preempted.
This chapter shall be applied and construed to effectuate its general purpose to make uniform the law with respect to the subject of this chapter among states enacting it.
An act done before July 1, 1994, in any proceeding and any accrued right is not impaired by this chapter. If a right is acquired, extinguished, or barred upon the expiration of a prescribed period of time that has commenced to run by the provisions of any statute before July 1, 1994, the provisions remain in force with respect to that right.
Any rule of construction or presumption provided in this chapter applies to instruments executed and multiple-party accounts opened before July 1, 1994, unless there is a clear indication of a contrary intent.
