Bill Text: NY S02971 | 2009-2010 | General Assembly | Introduced

---

Bill Title: Requires fair and reasonable disclosure of income, assets and financial obligations of decedent for surviving spouse's waiver of right of election to be enforceable and renders inapplicable the "dead man's statute" for purposes of accepting relevant evidence in this regard and in regard to Totten trust and joint bank account transactions.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Vetoed) 2010-03-30 - VETOED MEMO.6 [S02971 Detail]

Download: New_York-2009-S02971-Introduced.html

---

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________
                                         2971
                              2009-2010 Regular Sessions
                                   I N  S E N A T E
                                     March 9, 2009
                                      ___________
       Introduced  by  Sen. SAMPSON -- read twice and ordered printed, and when
         printed to be committed to the Committee on Judiciary
       AN ACT to amend the estates, powers and trusts law, in relation  to  the
         waiver of a right of election by a surviving spouse
         THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
       BLY, DO ENACT AS FOLLOWS:
    1    Section 1. Subparagraph 2 of paragraph (b) of section 5-1.1-A  of  the
    2  estates, powers and trusts law, as amended by chapter 515 of the laws of
    3  1993, is amended to read as follows:
    4    (2)  Transactions  described  in clause (D) or SUBCLAUSE (I) OF CLAUSE
    5  (E) [(i)] OF SUBPARAGRAPH (1) shall be treated as  testamentary  substi-
    6  tutes  in  the proportion that the funds on deposit were the property of
    7  the decedent immediately before the deposit or the consideration for the
    8  property described in SUBCLAUSE (I) OF clause (E) [(i)] OF  SUBPARAGRAPH
    9  (1)  was  furnished by the decedent. The surviving spouse shall have the
   10  burden of establishing the proportion of  the  decedent's  contribution;
   11  provided, however, that where the surviving spouse is the other party to
   12  the transaction, it will be conclusively presumed that the proportion of
   13  the decedent's contribution is one-half. For the purpose of this subpar-
   14  agraph,  SECTION  FORTY-FIVE  HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW
   15  AND RULES SHALL NOT APPLY, AND the court may accept such evidence as  is
   16  relevant  and  competent,  whether  or  not  [the  person  offering such
   17  evidence would otherwise be competent to testify] SUCH EVIDENCE WOULD BE
   18  EXCLUDED PURSUANT TO SECTION FORTY-FIVE HUNDRED NINETEEN  OF  THE  CIVIL
   19  PRACTICE LAW AND RULES.
   20    S 2. Paragraph  (e)  of  section  5-1.1-A  of  the estates, powers and
   21  trusts law is amended by adding a new subparagraph 5 to read as follows:
   22    (5) A WAIVER OR RELEASE  OF  RIGHT  OF  ELECTION  IS  NOT  ENFORCEABLE
   23  AGAINST  THE  SURVIVING SPOUSE IF SUCH SPOUSE PROVES, BY A PREPONDERANCE
   24  OF THE EVIDENCE, THAT SUCH SPOUSE WAS NOT PROVIDED A FAIR AND REASONABLE
   25  DISCLOSURE OF THE INCOME, ASSETS, AND FINANCIAL OBLIGATIONS OF THE DECE-
        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD06358-01-9
       S. 2971                             2
    1  DENT PRIOR TO THE EXECUTION OF THE WAIVER OR RELEASE, PROVIDED, HOWEVER,
    2  THAT THIS SUBPARAGRAPH SHALL NOT  APPLY  IF  IT  APPEARS  THAT  (I)  THE
    3  SURVIVING  SPOUSE  VOLUNTARILY  AND EXPRESSLY WAIVED OR RELEASED, IN THE
    4  MANNER  PROVIDED IN SUBPARAGRAPH (2), ANY RIGHT TO DISCLOSURE BEYOND THE
    5  DISCLOSURE PROVIDED, OR (II) SUCH SPOUSE HAD SUFFICIENT KNOWLEDGE OF THE
    6  INCOME, ASSETS AND FINANCIAL OBLIGATIONS OF THE DECEDENT  PRIOR  TO  THE
    7  EXECUTION  OF  THE  WAIVER OR RELEASE. FOR THE PURPOSES OF THIS SUBPARA-
    8  GRAPH, SECTION FORTY-FIVE HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND
    9  RULES SHALL NOT APPLY, AND THE COURT MAY  ACCEPT  SUCH  EVIDENCE  AS  IS
   10  RELEVANT  AND OTHERWISE COMPETENT, WHETHER OR NOT SUCH EVIDENCE WOULD BE
   11  EXCLUDED PURSUANT TO SECTION FORTY-FIVE HUNDRED NINETEEN  OF  THE  CIVIL
   12  PRACTICE  LAW  AND  RULES.  THIS  SUBPARAGRAPH  SHALL  NOT  PRECLUDE THE
   13  ASSERTION OF ANY COMMON LAW DEFENSES BY SUCH SURVIVING SPOUSE.
   14    S 3. This act shall  take  effect  on  the  first  of  September  next
   15  succeeding  the  date  on  which  it  shall have become a law, provided,
   16  however that section two of this act shall  apply  only  to  waivers  or
   17  releases,  of  a  spouse's  right of election, executed on or after such
   18  effective date.