Code of Virginia

Code of Virginia
Title 64.2. Wills, Trusts, and Fiduciaries
6/18/2019

Subtitle V. Provisions Applicable to Probate and Nonprobate Transfers.

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.

1994, c. 475, § 64.1-104.1; 2012, c. 614.

§ 64.2-2201. Requirement of survival by 120 hours for statutory rights.

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.

1994, c. 475, § 64.1-104.2; 2012, c. 614.

§ 64.2-2202. Requirement of survival by 120 hours under donative dispositions in governing instruments.

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.

1994, c. 475, § 64.1-104.3; 2012, c. 614.

§ 64.2-2203. Co-owners with right of survivorship; requirement of survival by 120 hours.

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.

1994, c. 475, § 64.1-104.4; 2012, c. 614.

§ 64.2-2204. Evidence of death or status.

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.

1994, c. 475, § 64.1-104.5; 2012, c. 614.

§ 64.2-2205. Exceptions.

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 (§§ 55-12.1 through 55-12.6); 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.

1994, c. 475, § 64.1-104.6; 2012, c. 614.

§ 64.2-2206. Protection of payors, bona fide purchasers, and other third parties; personal liability of recipient.

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.

1994, c. 475, § 64.1-104.7; 2012, c. 614.

§ 64.2-2207. Uniformity of application and construction.

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.

1994, c. 475, § 64.1-104.8; 2012, c. 614.

§ 64.2-2208. Effective date.

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.

1994, c. 475, § 64.1-104.9; 2012, c. 614.

Chapter 23. Persons Presumed Dead.

§ 64.2-2300. Presumption of death from absence or disappearance; when applicable.

A. 1. Any person who is a resident of the Commonwealth shall be presumed to be dead if such person:

a. Leaves and does not return to the Commonwealth for seven successive years and is not heard from;

b. Disappears for seven successive years and is not heard from; or

c. Disappears in a foreign country, his body has not been found, and he is not known to be alive, and a report of presumptive death by the Department of State of the United States has been issued.

2. Any person who is not a resident of the Commonwealth, but who owns real or personal property located within the Commonwealth, shall be presumed to be dead if such person disappears for seven successive years from the place of his residence outside of the Commonwealth and is not heard from.

3. The presumption created by this subsection shall be applicable in any action where the person's death is in question, unless proof is offered that the person was alive within the time specified or, in the case of a presumed death in a foreign country, at any time following the person's disappearance, whether before or after the report of presumptive death was issued.

B. The fact that any person was exposed to a specific peril of death may be a sufficient basis for determining at any time after the exposure that the person is presumed to have died less than seven years after the person was last heard from.

C. Any person on board any ship or vessel underway on the high seas who disappears from such ship or vessel, or any person on board an aircraft that disappears at sea, who is not known to be alive and whose body has not been found or identified prior to a hearing of a board of inquiry as to such disappearance, shall be presumed to be dead upon the findings of a board of inquiry that the person is presumed dead, or six months after the date of such disappearance, whichever occurs first.

D. Before any final order or decree is entered in a cause under subsection A, B, or C in favor of the alleged heirs, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent, or persons claiming by, through, or under them, or any of them, proceedings shall be held in conformity with §§ 64.2-2303 through 64.2-2306.

E. The heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the person presumed dead under subsection A, B, or C may be made parties defendant to proceedings in respect to real or personal property in which the presumed decedent may have an undivided interest by order of publication or other process as provided by law. The proceedings shall not be stayed in respect to the division, sale, or other disposition of the entire property. The provisions of subsection D shall be applicable only to the portion of the property set apart or to the share of the proceeds to which such person would be entitled.

Code 1950, § 64-101; 1954, c. 430; 1968, c. 656, § 64.1-105; 1989, c. 153; 1996, cc. 675, 684; 2003, c. 254; 2006, c. 351; 2012, c. 614.

§ 64.2-2301. Distribution of fund when presumption of death not applicable.

A. In any civil action wherein any estate or fund is to be distributed, if the interest of any person to the estate or fund depends upon his having been alive at a particular time and it is not known and cannot be shown by the exercise of reasonable diligence whether such person was alive at that time, and if the legal presumption of death does not apply, the court may enter an order distributing the estate or fund to those who would be otherwise entitled thereto if it were shown that such person was dead at such particular time.

B. Before any distribution is made pursuant to subsection A, the court shall require that, until the person is determined to be dead in accordance with § 64.2-2300, the heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest shall give a refunding bond with surety in such form as the court directs upon condition to account for the estate or fund to any person who may establish title thereto adverse to that of such heir at law, devisee, next of kin, legatee, beneficiary, survivor, or other successor in interest.

C. No motion shall be made hereunder except after reasonable notice to all parties upon whom service may be had. Nothing in this section shall be construed to affect in any way any requirement of law as to service of process.

Code 1950, § 64-102; 1968, c. 656, § 64.1-106; 1996, cc. 675, 684; 2005, c. 681; 2006, c. 351; 2012, c. 614.

§ 64.2-2302. Appointment of curator when presumption of death not applicable.

A circuit court, upon good cause shown, may appoint in accordance with the provisions of § 64.2-451 a curator for the estate of a resident of the Commonwealth in a case where the legal presumption of death is not applicable if (i) at least one year has expired since the date that the resident was last heard from and (ii) it is not known and cannot with reasonable diligence be shown whether such person is alive. In determining whether good cause exists, the court shall consider the existence and efficacy of any durable power of attorney.

2006, c. 351, § 64.1-106.1; 2012, c. 614.

§ 64.2-2303. Persons presumed dead; authority of clerk.

A clerk of the circuit court has no authority to (i) admit to probate a will of a person presumed to be dead, (ii) grant administration upon the estate of a person presumed to be dead, or (iii) appoint a curator pursuant to § 64.2-2302.

Code 1950, § 64-103; 1968, c. 656, § 64.1-107; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2304. Petition seeking determination of death; hearing; evidence; notice.

A. Whenever a petition is filed seeking a judicial determination that a person is dead, the court that would have jurisdiction over the person's probate estate if such person were dead shall hear evidence concerning the alleged absence of the presumed decedent and the circumstances and duration of such absence. The court shall require that notice of the filing of the petition be published once a week for four successive weeks in a newspaper published in the county or city where the petition is filed, and the notice shall include the date of the hearing, which shall be at least two weeks after the last publication.

B. At the hearing, the court shall hear all admissible evidence offered for the purpose of determining whether or not the presumption of death is applicable. If the court determines that the legal presumption of death is applicable, the court shall enter an order in accordance with § 64.2-2305, provided, however, that if the evidence shows that the length of a presumed decedent's absence is less than 10 years, the court shall immediately require notice of the order to be published once a week for two successive weeks in a newspaper published in the county or city where the petition is filed and, when practicable, in a newspaper published at or near the place where the presumed decedent had his residence when last heard from. The notice shall require the presumed decedent, if alive, or any person for him, produce to the court satisfactory evidence that the presumed decedent is alive within two weeks from the date of the last publication. If no satisfactory evidence is produced within this period, the court shall enter an order in accordance with § 64.2-2305.

C. For the purposes of subsections A and B, if there is no newspaper published in the county or city in which the publication required may be had, then the court shall order that the required notice be published in a newspaper having general circulation in such county or city. The cost of the publication pursuant to this section shall be paid by the petitioner.

Code 1950, §§ 64-104, 64-106; 1968, c. 656, §§ 64.1-108, 64.1-110; 1996, cc. 352, 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2305. Entry of order that presumption of death is applicable; effect.

A. If, after the hearing conducted pursuant to § 64.2-2304 and any subsequent publication required pursuant to that section, the court determines that the presumption of death is applicable, the court shall enter an order determining that the presumed decedent is in fact dead. Upon entry of such order, the court shall proceed to admit any will to probate, issue letters of administration to the party entitled thereto, or order that the claim of the heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest of the presumed decedent be established. If the order is subsequently revoked pursuant to § 64.2-2307, all acts done in pursuance of or in reliance on the order shall be as valid as if the presumed decedent were actually dead.

B. The court's order determining a person to be dead shall state the person's date of death to be:

1. The date of the expiration of the seven-year period in a proceeding governed by subsection A of § 64.2-2300, except that in a proceeding governed by subdivision A 1 c of § 64.2-2300 it shall be the date of the Department of State's issuance of a report of presumptive death unless the evidence shows the likelihood of death at an earlier date;

2. The date of the person's exposure to the specific peril of death in a proceeding governed by subsection B of § 64.2-2300; or

3. The date of the person's disappearance in a proceeding governed by subsection C of § 64.2-2300.

C. A certified copy of the court's order determining that the presumed decedent is in fact dead shall be accepted as proof of death in all situations in which a certificate of death issued by the State Registrar of Vital Records of the Virginia Department of Health would have been accepted as such proof.

Code 1950, § 64-107; 1968, c. 656, § 64.1-111; 2006, c. 351; 2012, c. 614.

§ 64.2-2306. Distribution of property; refunding bond.

Before any distribution of the proceeds of the estate of a person determined to be dead pursuant to this chapter or the payment or transfer of any of his other property is made, and before the sale of any real or personal property passing in kind by persons claiming such property as heirs at law, devisees, next of kin, legatees, beneficiaries, survivors, or other successors in interest, the persons entitled to receive such proceeds or property in kind shall give a refunding bond without surety upon condition that if the person determined to be dead is in fact alive at that time, they will respectively refund to such person the proceeds or property, or proceeds of such property, received by each on demand, without interest thereon.

Code 1950, § 64-108; 1962, c. 115; 1968, c. 656, § 64.1-112; 1996, cc. 675, 684; 2006, c. 351; 2012, c. 614.

§ 64.2-2307. Revocation of determination of death; effect on previous acts; title of purchasers.

The court, after reasonable notice to the parties interested, may revoke a determination of death at any time based on satisfactory evidence that the presumed decedent is in fact alive. If a determination of death is revoked, all powers of any personal representative shall terminate; however, if the personal representative has complied with the provisions of § 64.2-2306, all receipts and disbursements of assets and other acts previously done by the personal representative and the title of bona fide purchasers of property under sales made by the personal representative or by any heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest shall remain as valid as if no revocation had been made. Any personal representative shall settle his account and all assets remaining in his possession or in the possession of such heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest, and the proceeds of such assets, shall be transferred to the person who had been determined to be dead or to his duly authorized agent or attorney. Nothing in this section shall validate the title of any person to any money or property received as an heir at law, devisee, next of kin, legatee, survivor, beneficiary, or other successor in interest of such presumed decedent, and such money or property may be recovered from them as if the order determining death had not been granted.

Code 1950, § 64-109; 1968, c. 656, § 64.1-113; 2006, c. 351; 2012, c. 614.

§ 64.2-2308. Substitution of presumed decedent in pending actions; reopening of judgments; effect of judgments.

A. After revocation of the order determining death, the person who had been determined to be dead may:

1. Be substituted as plaintiff in all actions previously brought by his personal representative, whether prosecuted to judgment or otherwise, on suggestion filed by such person; and

2. Be substituted as defendant in all actions previously brought against his personal representative, on suggestion filed by such person or the plaintiff to the action. If such person is substituted as defendant, he shall not be compelled to go to trial in less than three months from the time that such suggestion is filed.

B. Upon application by the presumed decedent, judgments recovered against the personal representative before revocation of the order determining death may be opened. Such application by the presumed decedent shall be made within three months from the date of the revocation and shall be supported by an affidavit that specifically denies the cause of the action, in whole or in part, or specifically alleges the existence of facts that would constitute a valid defense. However, if no application is made during the three-month period, or, if an application is made but the facts exhibited are adjudged to be insufficient to constitute a defense, the judgment shall be conclusive for all intents. After the substitution of the presumed decedent as defendant to any judgment pursuant to subdivision A 2, the judgment shall become a lien upon his real estate and shall so continue as other judgments.

Code 1950, § 64-110; 1968, c. 656, § 64.1-114; 1971, Ex. Sess., c. 156; 2006, c. 351; 2012, c. 614.

§ 64.2-2309. Costs.

The costs attendant to the issuing of an order determining death or the revocation of such order shall be paid out of the estate of the presumed decedent. If the petition for the issuance or revocation of an order determining death is not granted, the costs shall be paid by the petitioner.

Code 1950, § 64-111; 1968, c. 656, § 64.1-115; 2006, c. 351; 2012, c. 614.

Chapter 24. Conservators of Property of Absentees.

§ 64.2-2400. Appointment of conservator; jurisdiction and procedure.

A. For purposes of this chapter:

"Absentee" means a person who is a resident of the Commonwealth or a nonresident of the Commonwealth who has an interest in any property located within the Commonwealth who (i) disappears or absents himself from his usual place of residence, (ii) is reported or listed as missing or missing in action, or (iii) is interned in a neutral country or captured by an enemy country.

B. Upon the filing of a petition for the appointment of a conservator, the court having probate jurisdiction in the city or county of the absentee's legal residence or, if such absentee is a nonresident, the court having probate jurisdiction in the city or county where the property is located, may appoint, upon good cause shown, a conservator to take charge of the absentee's estate. If the absentee is a nonresident, the petition shall allege the facts and show the necessity for providing for the care of the property of the absentee. The petition may be filed by any person who would have an interest in the property of the absentee were he deceased, including a creditor of the absentee, or made on the court's own motion, and after notice is given to the heirs and next of kin of such absentee, as provided by law.

1944, p. 361; Michie Suppl. 1946, § 5400b; Code 1950, § 26-68; 2012, c. 614.

§ 64.2-2401. Bond; orders as to management of estate; support of dependents.

The court shall require that any conservator appointed pursuant to § 64.2-2400 post a bond in an amount deemed sufficient by the court. The court shall also enter any orders it deems necessary (i) directing the conservator in the management, operation, and control of the estate and (ii) requiring the conservator to make ample and suitable provisions out of the estate in his possession, subject to the rights of creditors, for the support of the absentee's wife and minor children, as well as any other person dependent upon the absentee for support and maintenance. The court shall require the conservator to make reports from time to time as the court may deem expedient.

1944, p. 362; Michie Suppl. 1946, § 5400c; Code 1950, § 26-69; 2012, c. 614.

§ 64.2-2402. Proceedings to sell property of absentee after failure to locate heirs.

Any duly appointed conservator of the estate of a person who is known to be dead or who is presumed to be dead pursuant to Chapter 23 (§ 64.2-2300 et seq.), after making a diligent but unsuccessful effort to locate the heirs of such person for a period of at least two years after the person's death became known or presumed, may petition the court having jurisdiction over real property owned by the decedent for permission to sell such property. Proceedings under this section shall conform as nearly as practicable to proceedings relating to judicial sales of real property owned by an infant. The conservator shall account for the proceeds of the sale, and the net proceeds of the sale, after disbursement of costs, shall be conserved in such manner as the court deems proper.

1954, c. 387, § 26-68.1; 1996, cc. 675, 684; 2012, c. 614.

§ 64.2-2403. Termination of conservatorship.

At any time upon petition of the absentee, or upon the petition of a duly constituted attorney-in-fact of the absentee, if the court is of the opinion that such power of attorney is valid, the court shall terminate the conservatorship and shall transfer all property held for such absentee to him, or to such attorney-in-fact. However, if the court finds that during the pendency of the conservatorship the absentee has died, and an administrator or executor has been appointed for the absentee's estate, the court shall order the conservator to settle the accounts of his transactions before the court and shall direct the payment or transfer of such estate then remaining to the administrator or executor.

1944, p. 362; Michie Suppl. 1946, § 5400d; Code 1950, § 26-70; 2012, c. 614.

§ 64.2-2404. Expenses and compensation.

The court may allow to such conservator such expenses and compensation as the court determines to be fair and reasonable for services performed under his appointment.

1944, p. 362; Michie Suppl. 1946, § 5400e; Code 1950, § 26-71; 2012, c. 614.

Chapter 25. Acts Barring Property Rights.

§ 64.2-2500. Definitions.

As used in this chapter:

"Decedent" means any person whose life has been taken as a result of murder or voluntary manslaughter.

"Property" includes any real and personal property and any right or interest therein.

"Slayer" means any person (i) who is convicted of the murder or voluntary manslaughter of the decedent or, (ii) in the absence of such conviction, who is determined, whether before or after his death, by a court of appropriate jurisdiction by a preponderance of the evidence to have committed one of the offenses listed in clause (i) resulting in the death of the decedent. For the purposes of clause (ii), the party seeking to establish that a decedent was slain by such person shall have the burden of proof.

1981, c. 469, § 55-401; 1987, c. 498; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2501. Slayer not to acquire property as result of slaying.

A slayer, or any transferee, assignee, or other person claiming through the slayer, shall not in any way acquire any property or receive any benefits as the result of the death of the decedent, but such property or benefits shall pass as provided in this chapter.

1981, c. 469, § 55-402; 2008, cc. 822, 830l; 2012, c. 614.

§ 64.2-2502. Property passing by will or intestate succession; surviving spouse.

A. The slayer shall be deemed to have predeceased the decedent as to property that would have passed from the estate of the decedent to the slayer by intestate succession or that the slayer would have acquired by statutory right as the decedent's surviving spouse. An heir or distributee who establishes his kinship to the decedent by way of his kinship to a slayer shall be deemed to be claiming from the decedent and not through the slayer.

B. The slayer shall be deemed to have predeceased the decedent as to property that would have passed to the slayer by the will of the decedent; however, the antilapse provisions of § 64.2-418 are applicable to such property.

1981, c. 469, §§ 55-403, 55-404; 1990, c. 831; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2503. Concurrent ownership with or without survivorship.

A. The death of the decedent caused by the slayer results in the vesting of the slayer's interest in property held by the decedent and the slayer as tenants by the entirety or any other form of ownership with the right of survivorship in the estate of the decedent as though the slayer had predeceased the decedent.

B. The death of the decedent caused by the slayer results in the severance of the slayer's interest in property held by the decedent and the slayer as joint tenants, joint owners, or joint obligees without the right of survivorship and the share of the decedent passes as a part of his estate.

1981, c. 469, §§ 55-405, 55-406; 1992, c. 521; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2504. Reversions and vested remainders.

Property in which the slayer holds a reversion or vested remainder and would have obtained the right of present possession upon the death of the decedent shall pass to the estate of the decedent, if the decedent held the particular estate, during the period of the life expectancy of the decedent, or if the particular estate is held by a third person and measured by the life of the decedent, it shall remain in the possession of the third person during the period of the life expectancy of the decedent.

1981, c. 469, § 55-407; 2012, c. 614.

§ 64.2-2505. Interests dependent on survivorship or continuance of life.

Any interest in property, whether vested or not, held by the slayer subject to be divested, diminished in any way, or extinguished if the decedent survives him or lives to a certain age shall be held by the slayer during his lifetime or until the decedent would have reached such age, but shall then pass as if the decedent had died immediately after the death of the slayer or the reaching of such age.

1981, c. 469, § 55-408; 2012, c. 614.

§ 64.2-2506. Contingent remainders and future interests.

A. As to any contingent remainder or executory or other future interest held by the slayer subject to become vested in him or increased in any way for him upon the death of the decedent, the slayer shall be deemed to have predeceased the decedent if the interest would not have become vested or increased if the slayer had predeceased the decedent.

B. Notwithstanding subsection A, any contingent remainder or executory or other future interest shall not be vested in the slayer or increased in any way for him during the period of the life expectancy of the decedent.

1981, c. 469, § 55-409; 2012, c. 614.

§ 64.2-2507. Powers of appointment.

A. The slayer shall be deemed to have predeceased the decedent as to any exercise in the decedent's will of a power of appointment in favor of the slayer and the appointment shall be deemed to have lapsed.

B. Property held either presently or in remainder by the slayer subject to be divested by the exercise by the decedent of a power of revocation or a general power of appointment shall pass to the estate of the decedent. Property held by the slayer subject to be divested by the exercise by the decedent of a power of appointment to a particular person or persons or to a class of persons shall pass to such person or persons or in equal shares to the members of such class of persons, exclusive of the slayer.

1981, c. 469, § 55-410; 2012, c. 614.

§ 64.2-2508. Proceeds of insurance; bona fide payment by insurance company or obligor.

A. Insurance proceeds payable to the slayer as the beneficiary or assignee of any policy or certificate of insurance or bond or other contractual agreement on the life of the decedent or as the survivor of a joint life policy shall be paid to the estate of the decedent, unless the policy or certificate designates some person as an alternative beneficiary to the slayer.

B. If the decedent is the beneficiary or assignee of any policy or certificate of insurance on the life of the slayer, the proceeds shall be paid to the estate of the decedent upon the death of the slayer, unless the policy names some person other than the slayer or his estate as an alternative beneficiary, or unless the slayer, by naming a new beneficiary or by assigning the policy, performs an act that would have deprived the decedent of his interest in the policy if he had been living.

C. No insurance company shall be subject to liability on a policy insuring the life of the decedent if (i) as a part of the slayer's plan to murder the decedent, such policy was procured and maintained by the slayer or as a result of actions taken or participated in by the slayer whether directly or indirectly and (ii) the decedent's death resulted from the slayer's act committed within two years from the date such policy was issued by the insurance company.

D. Any insurer making payment according to the terms of its policy or contract or any bank or other person performing an obligation for the slayer as one of several joint obligees shall not be subjected to additional liability by the terms of this section if such payment or performance is made without notice of circumstances bringing it within the provisions of this section.

1981, c. 469, § 55-411; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2509. Persons acquiring from slayer protected.

The provisions of this chapter shall not affect the right of any person who, before the interests of the slayer have been adjudicated, acquires from the slayer for adequate consideration property or an interest therein that the slayer would have received except for the terms of this chapter, provided that such property or interest is acquired without notice of circumstances tending to bring it within the provisions of this chapter. All consideration received by the slayer shall be held by him in trust for the persons entitled to the property under the provisions of this chapter, and the slayer shall be liable for any portion of such consideration that he may have dissipated and for any difference between the actual value of the property and the amount of such consideration.

1981, c. 469, § 55-412; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2510. Admissibility of judicial record determining slayer.

The record of the judicial proceeding in which a person is determined to be a slayer shall be admissible in evidence for or against a claimant of property in any civil action arising under this chapter. A conviction shall be conclusive evidence of the guilt of the slayer.

1981, c. 469, § 55-413; 2008, cc. 822, 830; 2012, c. 614.

§ 64.2-2511. Construction.

A. This chapter shall not be considered penal in nature, but shall be construed broadly in order to effect the policy of the Commonwealth that no person shall be allowed to profit by his own wrong, wherever committed. In furtherance of this policy, the provisions of this chapter are not intended to be exclusive and all common law rights and remedies that prevent one who has participated in the willful and unlawful killing of another from profiting by his wrong shall continue to exist in the Commonwealth.

B. If this chapter or any part thereof is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this chapter, any person who, not for value, receives a payment, an item of property, or any other benefit to which he is not entitled under this chapter shall return that payment, item of property, or other benefit or be liable for the amount of the payment or the value of the property or benefit to the person who would have been entitled to it were this chapter or part thereof not preempted.

C. The Uniform Simultaneous Death Act (§ 64.2-2200 et seq.) shall not apply to cases governed by this chapter.

1981, c. 469, §§ 55-414, 55-415; 1994, c. 475; 2007, c. 301; 2008, cc. 822, 830; 2012, c. 614.

Chapter 26. Uniform Disclaimer of Property Interests Act.

§ 64.2-2600. Definitions.

As used in this chapter:

"Disclaimant" means the person to whom a disclaimed interest or power would have passed had the disclaimer not been made.

"Disclaimed interest" means the interest that would have passed to the disclaimant had the disclaimer not been made.

"Disclaimer" means the refusal to accept an interest in or power over property.

"Fiduciary" means a personal representative, trustee, agent acting under a power of attorney, or other person authorized to act as a fiduciary with respect to the property of another person.

"Jointly held property" means property held in the name of two or more persons under an arrangement in which all holders have concurrent interests and under which the last surviving holder is entitled to the whole of the property and includes, without limitation, property held as tenants by the entirety.

"Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, government, governmental subdivision, agency or instrumentality, public corporation, or any other legal or commercial entity.

"State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States. The term includes an Indian tribe or band, or Alaskan native village, recognized by federal law or formally acknowledged by a state.

"Trust" means (i) an express trust, charitable or noncharitable, with additions thereto, whenever and however created; and (ii) a trust created pursuant to a statute, judgment, or decree, that requires the trust to be administered in the manner of an express trust.

2003, c. 253, § 64.1-196.1; 2012, c. 614.

§ 64.2-2601. Scope.

This chapter applies to disclaimers of any interest in or power over property, whenever created.

2003, c. 253, § 64.1-196.2; 2012, c. 614.

§ 64.2-2602. Chapter supplemented by other law.

A. Unless displaced by a provision of this chapter, the principles of law and equity supplement this chapter.

B. This chapter does not limit any right of a person to waive, release, disclaim, or renounce an interest in or power over property under a law other than this chapter.

2003, c. 253, § 64.1-196.3; 2012, c. 614.

§ 64.2-2603. Power to disclaim; general requirements; when irrevocable.

A. A person may disclaim in whole or in part, any interest in or power over property, including a power of appointment. A person may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.

B. Except to the extent a fiduciary's right to disclaim is expressly restricted or limited by another statute of the Commonwealth or by the instrument creating the fiduciary relationship, a fiduciary may disclaim, in whole or in part, any interest in or power over property, including a power of appointment, whether acting in a personal or representative capacity. A fiduciary may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim, or an instrument other than the instrument that created the fiduciary relationship imposed a restriction or limitation on the right to disclaim.

C. A custodial parent of a minor for whom no guardian of the property has been appointed may disclaim, in whole or in part, an interest in or power over property, including a power of appointment, that, but for the custodial parent's disclaimer, would have passed to the minor as the result of another disclaimer. The custodial parent may disclaim the interest or power even if its creator imposed a spendthrift provision or similar restriction on transfer or a restriction or limitation on the right to disclaim.

D. To be effective, a disclaimer shall be in writing or other record, declare the disclaimer, describe the interest or power disclaimed, be signed by the person making the disclaimer, and be delivered or filed in the manner provided in § 64.2-2610. In this subsection, "record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

E. A partial disclaimer may be expressed as a fraction, percentage, monetary amount, term of years, limitation of power, or any other interest or estate in the property.

F. A disclaimer becomes irrevocable when it is delivered or filed pursuant to § 64.2-2610 or when it becomes effective as provided in §§ 64.2-2604 through 64.2-2609, whichever occurs later.

G. A disclaimer made under this chapter is not a transfer, assignment, or release.

2003, c. 253, § 64.1-196.4; 2012, c. 614.

§ 64.2-2604. Disclaimer of interest in property.

A. In this section:

"Future interest" means an interest that takes effect in possession or enjoyment, if at all, later than the time of its creation.

"Time of distribution" means the time when a disclaimed interest would have taken effect in possession or enjoyment.

B. Except for a disclaimer governed by § 64.2-2605 or 64.2-2606, the following rules apply to a disclaimer of an interest in property:

1. The disclaimer takes effect as of the time the instrument creating the interest becomes irrevocable or, if the interest arose under the law of intestate succession, as of the time of the intestate's death.

2. The disclaimed interest passes according to any provision in the instrument creating the interest providing for the disposition of the interest, should it be disclaimed, or of disclaimed interests in general.

3. If the instrument does not contain a provision described in subdivision 2, the following rules apply:

a. If the disclaimant is an individual, the disclaimed interest passes as if the disclaimant had died immediately before the time of distribution. However, if by law or under the instrument, the descendants of the disclaimant would share in the disclaimed interest by any method of representation had the disclaimant died before the time of distribution, the disclaimed interest passes only to the descendants of the disclaimant who survive at the time of distribution.

b. If the disclaimant is not an individual, the disclaimed interest passes as if the disclaimant did not exist.

4. Upon the disclaimer of a preceding interest, a future interest held by a person other than the disclaimant takes effect as if the disclaimant had died or ceased to exist immediately before the time of distribution, but a future interest held by the disclaimant is not accelerated in possession or enjoyment.

2003, c. 253, § 64.1-196.5; 2012, c. 614.

§ 64.2-2605. Disclaimer of rights of survivorship in jointly held property.

A. Upon the death of a holder of jointly held property, a surviving holder may disclaim, in whole or in part, the greater of (i) a fractional share of the property determined by dividing the number one by the number of joint holders alive immediately before the death of the holder to whose death the disclaimer relates or (ii) all of the property except that part of the value of the entire interest attributable to the contribution furnished by the disclaimant.

B. A disclaimer under subsection A takes effect as of the death of the holder of jointly held property to whose death the disclaimer relates.

C. An interest in jointly held property disclaimed by a surviving holder of the property passes as if the disclaimant predeceased the holder to whose death the disclaimer relates.

2003, c. 253, § 64.1-196.6; 2012, c. 614.

§ 64.2-2606. Disclaimer of interest by trustee.

If a trustee disclaims an interest in property that otherwise would have become trust property, the interest does not become trust property.

2003, c. 253, § 64.1-196.7; 2012, c. 614.

§ 64.2-2607. Disclaimer of power of appointment or other power not held in a fiduciary capacity.

If a holder disclaims a power of appointment or other power not held in a fiduciary capacity, the following rules apply:

1. If the holder has not exercised the power, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

2. If the holder has exercised the power and the disclaimer is of a power other than a presently exercisable general power of appointment, the disclaimer takes effect immediately after the last exercise of the power.

3. The instrument creating the power is construed as if the power expired when the disclaimer became effective.

2003, c. 253, § 64.1-196.8; 2012, c. 614.

§ 64.2-2608. Disclaimer by appointee, object, or taker in default of exercise of power of appointment.

A. A disclaimer of an interest in property by an appointee of a power of appointment takes effect as of the time the instrument by which the holder exercises the power becomes irrevocable.

B. A disclaimer of an interest in property by an object or taker in default of an exercise of a power of appointment takes effect as of the time the instrument creating the power becomes irrevocable.

2003, c. 253, § 64.1-196.9; 2012, c. 614.

§ 64.2-2609. Disclaimer of power held in fiduciary capacity.

A. If a fiduciary disclaims a power held in a fiduciary capacity that has not been exercised, the disclaimer takes effect as of the time the instrument creating the power becomes irrevocable.

B. If a fiduciary disclaims a power held in a fiduciary capacity that has been exercised, the disclaimer takes effect immediately after the last exercise of the power.

C. A disclaimer under this section is effective as to another fiduciary if the disclaimer so provides and the fiduciary disclaiming has the authority to bind the estate, trust, or other person for whom the fiduciary is acting.

2003, c. 253, § 64.1-196.10; 2012, c. 614.

§ 64.2-2610. Delivery or filing.

A. In this section, "beneficiary designation" means an instrument, other than an instrument creating a trust, naming the beneficiary of (i) an annuity or insurance policy; (ii) an account with a designation for payment on death; (iii) a security registered in beneficiary form; (iv) a pension, profit-sharing, retirement, or other employment-related benefit plan; or (v) any other nonprobate transfer at death.

B. Subject to subsections C through L, delivery of a disclaimer may be effected by personal delivery, first-class mail, or any other method likely to result in its receipt.

C. In the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, (i) a disclaimer shall be delivered to the personal representative of the decedent's estate or (ii) if no personal representative is then serving, it shall be filed with a court having jurisdiction to appoint the personal representative.

D. In the case of an interest in a testamentary trust, (i) a disclaimer shall be delivered to the trustee then serving or, if no trustee is then serving, to the personal representative of the decedent's estate or (ii) if no personal representative is then serving, it shall be filed with a court having jurisdiction to enforce the trust.

E. In the case of an interest in an inter vivos trust, (i) a disclaimer shall be delivered to the trustee then serving; (ii) if no trustee is then serving, it shall be filed with a court having jurisdiction to enforce the trust; or (iii) if the disclaimer is made before the time the instrument creating the trust becomes irrevocable, it shall be delivered to the settlor of a revocable trust or the transferor of the interest.

F. In the case of an interest created by a beneficiary designation made before the time the designation becomes irrevocable, a disclaimer shall be delivered to the person making the beneficiary designation.

G. In the case of an interest created by a beneficiary designation made after the time the designation becomes irrevocable, a disclaimer shall be delivered to the person obligated to distribute the interest.

H. In the case of a disclaimer by a surviving holder of jointly held property, the disclaimer shall be delivered to the person to whom the disclaimed interest passes.

I. In the case of a disclaimer by an object or taker in default of exercise of a power of appointment at any time after the power was created, (i) the disclaimer shall be delivered to the holder of the power or to the fiduciary acting under the instrument that created the power or (ii) if no fiduciary is then serving, it shall be filed with a court having authority to appoint the fiduciary.

J. In the case of a disclaimer by an appointee of a nonfiduciary power of appointment, (i) the disclaimer shall be delivered to the holder, the personal representative of the holder's estate, or the fiduciary under the instrument that created the power or (ii) if no fiduciary is then serving, it shall be filed with a court having authority to appoint the fiduciary.

K. In the case of a disclaimer by a fiduciary of a power over a trust or estate, the disclaimer shall be delivered as provided in subsection C, D, or E, as if the power disclaimed were an interest in property.

L. In the case of a disclaimer of a power by an agent, the disclaimer shall be delivered to the principal or the principal's representative.

2003, c. 253, § 64.1-196.11; 2012, c. 614.

§ 64.2-2611. When disclaimer barred or limited.

A. A disclaimer is barred by a written waiver of the right to disclaim.

B. A disclaimer of an interest in property is barred if any of the following events occur before the disclaimer becomes effective: (i) the disclaimant accepts the interest sought to be disclaimed; (ii) the disclaimant voluntarily assigns, conveys, encumbers, pledges, or transfers the interest sought to be disclaimed or contracts to do so; or (iii) a judicial sale of the interest sought to be disclaimed occurs.

C. A disclaimer, in whole or in part, of the future exercise of a power held in a fiduciary capacity is not barred by its previous exercise.

D. A disclaimer, in whole or in part, of the future exercise of a power not held in a fiduciary capacity is not barred by its previous exercise unless the power is exercisable in favor of the disclaimant.

E. A disclaimer is barred or limited if so provided by law other than this chapter.

F. A disclaimer of a power over property that is barred by this section is ineffective. A disclaimer of an interest in property that is barred by this section takes effect as a transfer of the interest disclaimed to the persons who would have taken the interest under this chapter had the disclaimer not been barred.

2003, c. 253, § 64.1-196.12; 2012, c. 614.

§ 64.2-2612. Tax qualified disclaimer.

Notwithstanding any other provision of this chapter, if as a result of a disclaimer or transfer the disclaimed or transferred interest is treated pursuant to the provisions of Title 26 of the United States Code, as now or hereafter amended, or any successor statute thereto, and the regulations promulgated thereunder, as never having been transferred to the disclaimant, then the disclaimer or transfer is effective as a disclaimer under this chapter.

2003, c. 253, § 64.1-196.13; 2012, c. 614.

§ 64.2-2613. Recording of disclaimer.

If an instrument transferring title to real property is disclaimed, a copy of the disclaimer shall be recorded in the office of the clerk of the circuit court for the jurisdiction where the real property is located. If any other interest in or power over property subject to a disclaimer is required or permitted by law to be filed, recorded, or registered, the disclaimer may be so filed, recorded, or registered. Failure to file, record, or register the disclaimer does not affect its validity as between the disclaimant and persons to whom the property interest or power passes by reason of the disclaimer.

2003, c. 253, § 64.1-196.14; 2012, c. 614.

§ 64.2-2614. Application to existing relationships.

Except as otherwise provided in § 64.2-2611, an interest in or power over property existing on July 1, 2003, as to which the time for delivering or filing a disclaimer under law superseded by this chapter has not expired may be disclaimed after the effective date of this chapter.

2003, c. 253, § 64.1-196.15; 2012, c. 614.

Chapter 27. Uniform Powers of Appointment Act.

Article 1. General Provisions.

§ 64.2-2700. Definitions.

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

"Appointee" means a person to which a powerholder makes an appointment of appointive property.

"Appointive property" means the property or property interest subject to a power of appointment.

"Blanket-exercise clause" means a clause in an instrument which exercises a power of appointment and is not a specific-exercise clause. "Blanket-exercise clause" includes a clause that:

1. Expressly uses the words "any power" in exercising any power of appointment the powerholder has;

2. Expressly uses the words "any property" in appointing any property over which the powerholder has a power of appointment; or

3. Disposes of all property subject to disposition by the powerholder.

"Donor" means a person that creates a power of appointment.

"Exclusionary power of appointment" means a power of appointment exercisable in favor of any one or more of the permissible appointees to the exclusion of the other permissible appointees.

"General power of appointment" means a power of appointment exercisable in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

"Gift-in-default clause" means a clause in the instrument creating the power identifying a taker in default of appointment.

"Impermissible appointee" means a person that is not a permissible appointee.

"Instrument" means a record.

"Nongeneral power of appointment" means a power of appointment that is not a general power of appointment.

"Permissible appointee" means a person in whose favor a powerholder may exercise a power of appointment.

"Person" means an individual; estate; trust; business or nonprofit entity; public corporation; government or governmental subdivision, agency, or instrumentality; or other legal entity.

"Powerholder" means a person in which a donor creates a power of appointment.

"Power of appointment" means a power that enables a powerholder acting in a nonfiduciary capacity to designate a recipient of an ownership interest in or another power of appointment over the appointive property. "Power of appointment" does not include a power of attorney.

"Presently exercisable power of appointment" means a power of appointment exercisable by the powerholder at the relevant time. "Presently exercisable power of appointment":

1. Includes a power of appointment not exercisable until the occurrence of a specified event, the satisfaction of an ascertainable standard, or the passage of a specified time only after:

a. The occurrence of the specified event;

b. The satisfaction of the ascertainable standard; or

c. The passage of the specified time; and

2. Does not include a power exercisable only at the powerholder's death.

"Record" means information that is inscribed on a tangible medium or that is stored in an electronic or other medium and is retrievable in perceivable form.

"Specific-exercise clause" means a clause in an instrument which specifically refers to and exercises a particular power of appointment.

"Taker in default of appointment" means a person that takes all or part of the appointive property to the extent that the powerholder does not effectively exercise the power of appointment.

"Terms of the instrument" means the manifestation of the intent of the maker of the instrument regarding the instrument's provisions as expressed in the instrument or as may be established by other evidence that would be admissible in a legal proceeding.

1944, p. 67; Michie Suppl. 1946, § 5440(1); Code 1950, § 55-278; 2012, c. 614; 2016, c. 266.

§ 64.2-2701. Repealed.

Repealed by Acts 2016, c. 266, cl. 2.

§ 64.2-2705. Governing law.

Unless the terms of the instrument creating a power of appointment manifest a contrary intent:

1. The creating, revocation, or amendment of the power is governed by the law of the donor's domicile at the relevant time; and

2. The exercise, release, or disclaimer of the power, or the revocation or amendment of the exercise, release, or disclaimer of the power is governed by the law of the powerholder's domicile at the relevant time.

2016, c. 266.

§ 64.2-2706. Common law and principles of equity.

The common law and principles of equity supplement this chapter, except to the extent modified by this chapter or other law of the Commonwealth.

2016, c. 266.

Article 2. Creation, Revocation, and Amendment of Power of Appointment.

§ 64.2-2707. Creation of power of appointment.

A. A power of appointment is created only if:

1. The instrument creating the power:

a. Is valid under applicable law; and

b. Except as otherwise provided in subsection B, transfers the appointive property; and

2. The terms of the instrument creating the power manifest the donor's intent to create in a powerholder a power of appointment over the appointive property exercisable in favor of a permissible appointee.

B. Subdivision A 1 b does not apply to the creation of a power of appointment by the exercise of a power of appointment.

C. A power of appointment may not be created in a deceased individual.

D. Subject to an applicable rule against perpetuities, a power of appointment may be created in an unborn or unascertained powerholder.

2016, c. 266.

§ 64.2-2708. Nontransferability.

A powerholder may not transfer a power of appointment. If a powerholder dies without exercising or releasing a power, the power lapses.

2016, c. 266.

§ 64.2-2709. Presumption of unlimited authority.

Subject to § 64.2-2711, and unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is:

1. Presently exercisable;

2. Exclusionary; and

3. Except as otherwise provided in § 64.2-2710, general.

2016, c. 266.

§ 64.2-2710. Exception to presumption of unlimited authority.

Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the power is nongeneral if:

1. The power is exercisable only at the powerholder's death; and

2. The permissible appointees of the power do not include the powerholder's estate, the powerholder's creditors, or the creditors of the powerholder's estate.

2016, c. 266.

§ 64.2-2711. Rules of classification.

A. As used in this section, "adverse party" means a person with a substantial beneficial interest in property which would be affected adversely by a powerholder's exercise or nonexercise of a power of appointment in favor of the powerholder, the powerholder's estate, a creditor of the powerholder, or a creditor of the powerholder's estate.

B. If a powerholder may exercise a power of appointment only with the consent or joinder of an adverse party, the power is nongeneral.

C. Only a power of appointment whose permissible appointees are defined and limited can be nonexclusionary.

2016, c. 266.

§ 64.2-2712. Power to revoke or amend.

A donor may revoke or amend a power of appointment only to the extent that:

1. The instrument creating the power is revocable by the donor; or

2. The donor reserves a power of revocation or amendment in the instrument creating the power of appointment.

2016, c. 266.

Article 3. Exercise of Power of Appointment.

§ 64.2-2713. Requisites for exercise of power of appointment.

A power of appointment is exercised only:

1. If the instrument exercising the power is valid under applicable law;

2. If the terms of the instrument exercising the power:

a. Manifest the powerholder's intent to exercise the power; and

b. Subject to § 64.2-2716, satisfy the requirements of exercise, if any, imposed by the donor; and

3. To the extent that the appointment is a permissible exercise of the power.

2016, c. 266.

§ 64.2-2714. Intent to exercise; determining intent from residuary clause.

A. As used in this section:

"Residuary clause" does not include a residuary clause containing a blanket-exercise clause or a specific-exercise clause.

"Will" includes a codicil and a testamentary instrument that revises another will.

B. A residuary clause in a powerholder's will, or a comparable clause in the powerholder's revocable trust, manifests the powerholder's intent to exercise a power of appointment only if:

1. The terms of the instrument containing the residuary clause do not manifest a contrary intent;

2. The power is a general power exercisable in favor of the powerholder's estate;

3. There is no gift-in-default clause or the clause is ineffective; and

4. The powerholder did not release the power.

2016, c. 266.

§ 64.2-2715. Intent to exercise; after-acquired power.

Unless the terms of the instrument exercising a power of appointment manifest a contrary intent:

1. Except as otherwise provided in subdivision 2, a blanket-exercise clause extends to a power acquired by the powerholder after executing the instrument containing the clause; and

2. If the powerholder is also the donor of the power, the clause does not extend to the power unless there is no gift-in-default clause or the gift-in-default clause is ineffective.

2016, c. 266.

§ 64.2-2716. Substantial compliance with donor-imposed formal requirement.

A powerholder's substantial compliance with a formal requirement of appointment imposed by the donor, including a requirement that the instrument exercising the power of appointment make reference or specific reference to the power, is sufficient if:

1. The powerholder knows of and intends to exercise the power; and

2. The powerholder's manner of attempted exercise of the power does not impair a material purpose of the donor in imposing the requirement.

2016, c. 266.

§ 64.2-2717. Permissible appointment.

A. A powerholder of a general power of appointment that permits appointment to the powerholder or the powerholder's estate may make any appointment, including an appointment in trust or creating a new power of appointment, that the powerholder could make in disposing of the powerholder's own property.

B. A powerholder of a general power of appointment that permits appointment only to the creditors of the powerholder or of the powerholder's estate may appoint only to those creditors.

C. Unless the terms of the instrument creating a power of appointment manifest a contrary intent, the powerholder of a nongeneral power may:

1. Make an appointment in any form, including an appointment in trust, in favor of a permissible appointee;

2. Create a general power or a nongeneral power in a permissible appointee; or

3. Create a nongeneral power in an impermissible appointee to appoint to one or more of the permissible appointees of the original nongeneral power.

2016, c. 266.

§ 64.2-2718. Appointment to deceased appointee.

An appointment to a deceased appointee is ineffective.

2016, c. 266.

§ 64.2-2719. Impermissible appointment.

A. An exercise of a power of appointment in favor of an impermissible appointee is ineffective.

B. An exercise of a power of appointment in favor of a permissible appointee is ineffective to the extent that the appointment is a fraud on the power.

2016, c. 266.

§ 64.2-2720. Selective allocation doctrine.

If a powerholder exercises a power of appointment in a disposition that also disposes of property the powerholder owns, the owned property and the appointive property shall be allocated in the permissible manner that best carries out the powerholder's intent.

2016, c. 266.

§ 64.2-2721. Capture doctrine; disposition of ineffectively appointed property under general power.

To the extent that a powerholder of a general power of appointment, other than a power to withdraw property from, revoke, or amend a trust, makes an ineffective appointment:

1. The gift-in-default clause controls the disposition of the ineffectively appointed property; or

2. If there is no gift-in-default clause or to the extent that the clause is ineffective, the ineffectively appointed property:

a. Passes to:

(1) The powerholder if the powerholder is a permissible appointee and living; or

(2) If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or

b. If there is no taker under subdivision 2 a, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

2016, c. 266.

§ 64.2-2722. Disposition of unappointed property under released or unexercised general power.

To the extent that a powerholder releases or fails to exercise a general power of appointment other than a power to withdraw property from, revoke, or amend a trust:

1. The gift-in-default clause controls the disposition of the unappointed property; or

2. If there is no gift-in-default clause or to the extent that the clause is ineffective:

a. Except as otherwise provided in subdivision 2 b, the unappointed property passes to:

(1) The powerholder if the powerholder is a permissible appointee and living; or

(2) If the powerholder is an impermissible appointee or deceased, the powerholder's estate if the estate is a permissible appointee; or

b. To the extent that the powerholder released the power, or if there is no taker under subdivision 2 a, the unappointed property passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

2016, c. 266.

§ 64.2-2723. Disposition of unappointed property under released or unexercised nongeneral power.

To the extent that a powerholder releases, ineffectively exercises, or fails to exercise a nongeneral power of appointment:

1. The gift-in-default clause controls the disposition of the unappointed property; or

2. If there is no gift-in-default clause or to the extent that the clause is ineffective, the unappointed property:

a. Passes to the permissible appointees if:

(1) The permissible appointees are defined and limited; and

(2) The terms of the instrument creating the power do not manifest a contrary intent; or

b. If there is no taker under subdivision 2 a, passes under a reversionary interest to the donor or the donor's transferee or successor in interest.

2016, c. 266.

§ 64.2-2724. Disposition of unappointed property if partial appointment to taker in default.

Unless the terms of the instrument creating or exercising a power of appointment manifest a contrary intent, if the powerholder makes a valid partial appointment to a taker in default of appointment, the taker in default of appointment may share fully in unappointed property.

2016, c. 266.

§ 64.2-2725. Appointment to taker in default.

If a powerholder makes an appointment to a taker in default of appointment and the appointee would have taken the property under a gift-in-default clause had the property not been appointed, the power of appointment is deemed not to have been exercised and the appointee takes under the clause.

2016, c. 266.

§ 64.2-2726. Powerholder's authority to revoke or amend exercise.

A powerholder may revoke or amend an exercise of a power of appointment only to the extent that:

1. The powerholder reserves a power of revocation or amendment in the instrument exercising the power of appointment, and if the power is nongeneral, the terms of the instrument creating the power of appointment do not prohibit the reservation; or

2. The terms of the instrument creating the power of appointment provide that the exercise is revocable or amendable.

2016, c. 266.

Article 4. Disclaimer or Release; Contract to Appoint or Not to Appoint.

§ 64.2-2727. Disclaimer.

As provided by Chapter 26 (§ 64.2-2600 et seq.):

1. A powerholder may disclaim all or part of a power of appointment.

2. A permissible appointee, appointee, or taker in default of appointment may disclaim all or part of an interest in appointive property.

2016, c. 266.

§ 64.2-2728. Authority to release.

A powerholder may release a power of appointment, in whole or in part, except to the extent that the terms of the instrument creating the power prevent the release.

2016, c. 266.

§ 64.2-2729. Method of release.

A powerholder of a releasable power of appointment may release the power in whole or in part:

1. By substantial compliance with a method provided in the terms of the instrument creating the power; or

2. If the terms of the instrument creating the power do not provide a method or the method provided in the terms of the instrument is not expressly made exclusive, by a record manifesting the powerholder's intent by clear and convincing evidence.

2016, c. 266.

§ 64.2-2730. Notice of release; recordation; fee.

A. A fiduciary or other person, association, or corporation having possession or control of any appointive property, other than the powerholder, shall not be deemed to have notice of a release of the power of appointment until the original or a copy of the release is delivered to such fiduciary or other person, association, or corporation.

B. A purchaser or mortgagee of any real property subject to a power of appointment, without actual notice of the release, shall not be deemed to have notice of a release of power until (i) the original or a copy of the release is recorded in the circuit court clerk's office in the county or city in which the real property is located, referencing the will or deed book where the instrument creating the power is recorded, and (ii) the deed, will, or other instrument creating the power of appointment, or a certified copy thereof, is recorded in the same clerk's office.

C. No release shall be invalid or ineffective for failing to comply with subsection A or B.

D. The clerk shall record a release of a power of appointment in the deed book and index the release in the daily and general indexes with the name of the powerholder being entered on the grantor index. For each such recordation, the clerk shall be paid a fee in the amount applicable to the recordation of deeds as set forth in subdivision A 2 of § 17.1-275 and an additional fee of $5.

2016, c. 266.

§ 64.2-2731. Revocation or amendment of release.

A powerholder may revoke or amend a release of a power of appointment only to the extent that:

1. The instrument of release is revocable by the powerholder; or

2. The powerholder reserves a power of revocation or amendment in the instrument of release.

2016, c. 266.

§ 64.2-2732. Power to contract; presently exercisable power of appointment.

A powerholder of a presently exercisable power of appointment may contract:

1. Not to exercise the power; or

2. To exercise the power if the contract when made does not confer a benefit on an impermissible appointee.

2016, c. 266.

§ 64.2-2733. Power to contract; power of appointment not presently exercisable.

A powerholder of a power of appointment that is not presently exercisable may contract to exercise or not to exercise the power only if the powerholder:

1. Is also the donor of the power; and

2. Has reserved the power in a revocable trust.

2016, c. 266.

§ 64.2-2734. Remedy for breach of contract to appoint or not to appoint.

The remedy for a powerholder's breach of a contract to appoint or not to appoint appointive property is limited to damages payable out of the appointive property or, if appropriate, specific performance of the contract.

2016, c. 266.

Article 5. Right of Powerholder's Creditors in Appointive Property.

§ 64.2-2735. Creditor claim; general power created by powerholder.

A. As used in this section, "power of appointment created by the powerholder" includes a power of appointment created in a transfer by another person to the extent that the powerholder contributed value to the transfer.

B. Appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of the powerholder or of the powerholder's estate to the extent provided in Chapter 5 (§ 55-80 et seq.) of Title 55.

C. Subject to subsection B, appointive property subject to a general power of appointment created by the powerholder is not subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder irrevocably appointed the property in favor of a person other than the powerholder or the powerholder's estate.

D. Subject to subsections B and C, and notwithstanding the presence of a spendthrift provision or whether the claim arose before or after the creation of the power of appointment, appointive property subject to a general power of appointment created by the powerholder is subject to a claim of a creditor of:

1. The powerholder, to the same extent as if the powerholder owned the appointive property, if the power is presently exercisable; and

2. The powerholder's estate, to the extent that the estate is insufficient to satisfy the claim and subject to the right of a decedent to direct the source from which liabilities are paid, if the power is exercisable at the powerholder's death.

2016, c. 266.

§ 64.2-2736. Creditor claim; general power not created by powerholder.

A. Except as otherwise provided in subsection C, appointive property subject to a presently exercisable general power of appointment created by a person other than the powerholder is subject to a claim of a creditor of the powerholder to the extent that the powerholder's property is insufficient.

B. Appointive property subject to a general power of appointment exercisable at the powerholder's death is not subject to a claim of a creditor of the powerholder or the powerholder's estate except to the extent that the power is exercised in favor of the powerholder's estate.

C. Subject to subsection C of § 64.2-2738, a power of appointment created by a person other than the powerholder, which is subject to an ascertainable standard relating to an individual's health, education, support, or maintenance within the meaning of 26 U.S.C. § 2041(b)(1)(A) or 26 U.S.C. § 2514(c)(1), as amended, is treated for purposes of this article as a nongeneral power.

2016, c. 266.

§ 64.2-2737. Power to withdraw.

A. For purposes of this article, and except as otherwise provided in subsection B, a power to withdraw property from a trust is treated, during the time the power may be exercised, as a presently exercisable general power of appointment to the extent of the property subject to the power to withdraw.

B. On the lapse, release, or waiver of a power to withdraw property from a trust, the power is treated as a presently exercisable general power of appointment only to the extent that the value of the property affected by the lapse, release, or waiver exceeds the greater of the amount specified in 26 U.S.C. § 2041(b)(2) and 26 U.S.C. § 2514(e) or two times the amount specified in 26 U.S.C. § 2503(b), as amended.

2016, c. 266.

§ 64.2-2738. Creditor claim; nongeneral power.

A. Except as otherwise provided in subsections B and C, appointive property subject to a nongeneral power of appointment is exempt from a claim of a creditor of the powerholder or the powerholder's estate.

B. Appointive property subject to a nongeneral power of appointment is subject to a claim of a creditor of the powerholder or the powerholder's estate to the extent that the powerholder owned the property and, reserving the nongeneral power, transferred the property in violation of Chapter 5 (§ 55-80 et seq.) of Title 55.

C. If the initial gift in default of appointment is to the powerholder or the powerholder's estate, a nongeneral power of appointment is treated for purposes of this article as a general power.

2016, c. 266.

Article 6. Miscellaneous Provisions.

§ 64.2-2739. Uniformity of application and construction.

In applying and construing this chapter, consideration shall be given to the need to promote uniformity of the law with respect to its subject matter among states that enact it.

2016, c. 266.

§ 64.2-2740. Relation to Electronic Signatures in Global and National Commerce Act.

This chapter modifies, limits, or supersedes the Electronic Signatures in Global and National Commerce Act, 15 U.S.C. § 7001 et seq., but does not modify, limit, or supersede § 101(c) of that act, 15 U.S.C. § 7001(c), or authorize electronic delivery of any of the notices described in § 103(b) of that act, 15 U.S.C. § 7003(b).

2016, c. 266.

§ 64.2-2741. Application to existing relationships.

A. Except as otherwise provided in this chapter, on and after July 1, 2016:

1. This chapter applies to a power of appointment created before, on, or after July 1, 2016;

2. This chapter applies to a judicial proceeding concerning a power of appointment commenced on or after July 1, 2016;

3. This chapter applies to a judicial proceeding concerning a power of appointment commenced before July 1, 2016, unless the court finds that application of a particular provision of this chapter would interfere substantially with the effective conduct of the judicial proceeding or prejudice a right of a party, in which case the particular provision of this chapter does not apply and the superseded law applies;

4. A rule of construction or presumption provided in this chapter applies to an instrument executed before July 1, 2016, unless there is a clear indication of a contrary intent in the terms of the instrument; and

5. Except as otherwise provided in subdivisions 1 through 4, an action done before July 1, 2016, is not affected by this chapter.

B. If a right is acquired, extinguished, or barred on the expiration of a prescribed period that commenced under law of the Commonwealth other than this chapter before July 1, 2016, the law continues to apply to the right.

2016, c. 266.

The chapters of the acts of assembly referenced in the historical citation at the end of these sections may not constitute a comprehensive list of such chapters and may exclude chapters whose provisions have expired.

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