SENATORS Goodman, Jacobson, Hottinger, Spada, Oelslager, Harris, Armbruster, Espy

To amend sections 2105.02, 2105.04, 2105.07, 2105.08,

1

2106.04, 2107.34, 2121.02, and 2121.06, to enact

2

sections 2105.31 to 2105.39, and to repeal section

3

2105.21 of the Revised Code to enact the Uniform

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Simultaneous Death Act effective January 1, 2002.

5

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 2105.02, 2105.04, 2105.07, 2105.08,	6
2106.04, 2107.34, 2121.02, and 2121.06 be amended, and sections	7
2105.31, 2105.32, 2105.33, 2105.34, 2105.35, 2105.36, 2105.37,	8
2105.38, and 2105.39 of the Revised Code be enacted to read as	9
follows:	10

Sec. 2105.02.  When, in sections 2105.01 to 2105.21,	11
inclusive,Chapter 2105. of the Revised Code, a person is	12
described as living, it means that hethe person was living at the	13
time of the death of the intestate from whom the estate came, and	14
when a person is described as having died, it means that hethe	15
person died before such intestate.	16

Sec. 2105.04.  Permanent leasehold estates, renewable	17
forever, are subject to sections 2105.01 to 2105.21, inclusive,	18
Chapter 2105. of the Revised Code.	19

Sec. 2105.07.  When, under sections 2105.01 to 2105.21,	20
inclusive,Chapter 2105. of the Revised Code, personal property	21
escheats to the state, the prosecuting attorney of the county in	22
which letters of administration are granted upon such estate shall	23
collect and pay it over to the county treasurer. Such estate	24
shall be applied exclusively to the support of the common schools	25
of the county in which collected.	26

Sec. 2105.08. Sections 2105.01 to 2105.21, inclusive,	27
Chapter 2105. of the Revised Code applyapplies to any escheating	28
estate of which possession has not been taken, or which has not	29
been collected by the proper officers of the state or those acting	30
under their authority. Right or claim of the state thereto is	31
hereby relinquished to the person who would have been entitled	32
thereto had such sections been in force when the intestate died.	33

Sec. 2105.31. As used in sections 2105.31 to 2105.39 of the	34
Revised Code:	35

(A) "Co-owners with right of survivorship" includes joint	36
tenants, tenants by the entireties, and other co-owners of real or	37
personal property, insurance or other policies, or bank or other	38
accounts held under circumstances that entitle one or more persons	39
to the whole of the property or account on the death of the other	40
person or persons.	41

(B) "Governing instrument" means a deed, will, trust,	42
insurance or annuity policy, account with a transfer-on-death	43
designation or the abbreviation TOD, account with a	44
payable-on-death designation or the abbreviation POD, pension,	45
profit-sharing, retirement, or similar benefit plan, instrument	46
creating or exercising a power of appointment or a power of	47
attorney, or a dispositive, appointive, or nominative instrument	48
of any similar type.	49

(C) "Payor" means a trustee, insurer, business entity,	50
employer, governmental agency, political subdivision, or any other	51
person authorized or obligated by law or a governing instrument to	52
make payments or transfers.	53

(D) "Event" includes the death of another person.

54

Sec. 2105.32. (A) Except as provided in section 2105.36 of	55
the Revised Code, a person who is not established by clear and	56
convincing evidence to have survived another specified person by	57
one hundred twenty hours is deemed to have predeceased the other	58
person for the following purposes:	59

(1) When the title to real or personal property or the	60
devolution of real or personal property depends upon a person's	61
survivorship of the death of another person;	62

(2) When the right to elect an interest in or exempt a	63
surviving spouse's share of an intestate estate under section	64
2105.06 of the Revised Code depends upon a person's survivorship	65
of the death of another person;	66

(3) When the right to elect an interest in or exempt an	67
interest of the decedent in the mansion house pursuant to section	68
2106.10 of the Revised Code depends upon a person's survivorship	69
of the death of another person;	70

(4) When the right to elect an interest in or exempt an	71
allowance for support pursuant to section 2106.13 of the Revised	72
Code depends upon a person's survivorship of the death of another	73
person.	74

(B) This section does not apply if its application would	75
result in a taking of an intestate estate by the state.	76

Sec. 2105.33. Except as provided in section 2105.36 of the	77
Revised Code, a person who is not established by clear and	78
convincing evidence to have survived a specified event by one	79
hundred twenty hours is deemed to have predeceased the event for	80
purposes of a provision of a governing instrument that relates to	81
the person surviving an event.	82

Sec. 2105.34. Except as provided in section 2105.36 of the	83
Revised Code:	84

(A) If it is not established by clear and convincing	85
evidence that one of two co-owners with right of survivorship in	86
specified real or personal property survived the other co-owner by	87
one hundred twenty hours, that property shall pass as if each	88
person had survived the other person by one hundred twenty hours.	89

(B) If there are more than two co-owners with right of	90
survivorship in specified real or personal property and it is not	91
established by clear and convincing evidence that at least one of	92
the co-owners survived the others by one hundred twenty hours,	93
that property shall pass in the proportion that each person owns.	94

Sec. 2105.35. (A)(1) A person is dead if the person has	95
been determined to be dead pursuant to standards established under	96
section 2108.30 of the Revised Code.	97

(2) A physician who makes a determination of death in	98
accordance with section 2108.30 of the Revised Code and any person	99
who acts in good faith in reliance on a determination of death	100
made by a physician in accordance with that section is entitled to	101
the immunity conveyed by that section.	102

(B) A certified or authenticated copy of a death	103
certificate purporting to be issued by an official or agency of	104
the place where the death of a person purportedly occurred is	105
prima-facie evidence of the fact, place, date, and time of the	106
person's death and the identity of the decedent.	107

(C) A certified or authenticated copy of any record or	108
report of a domestic or foreign governmental agency that a person	109
is missing, detained, dead, or alive is prima-facie evidence of	110
the status and of the dates, circumstances, and places disclosed	111
by the record or report.	112

(D) In the absence of prima-facie evidence of death under	113
division (B) or (C) of this section, the fact of death may be	114
established by clear and convincing evidence, including	115
circumstantial evidence.	116

(E) Except as provided in division (F) of this section, a	117
presumption of the death of a person arises:	118

(1) When the person has disappeared and been continuously	119
absent from the person's place of last domicile for a five-year	120
period without being heard from during the period;	121

(2) When the person has disappeared and been continuously	122
absent from the person's place of last domicile without being	123
heard from and was at the beginning of the person's absence	124
exposed to a specific peril of death, even though the absence has	125
continued for less than a five-year period.	126

(F) When a person who is on active duty in the armed	127
services of the United States has been officially determined to be	128
absent in a status of "missing" or "missing in action," a	129
presumption of death arises when the head of the federal	130
department concerned has made a finding of death pursuant to the	131
"Federal Missing Persons Act," 80 Stat. 625 (1966), 37 U.S.C.A.	132
551, as amended.	133

(G) In the absence of evidence disputing the time of death	134
stipulated on a document described in division (B) or (C) of this	135
section, a document described in either of those divisions that	136
stipulates a time of death one hundred twenty hours or more after	137
the time of death of another person, however the time of death of	138
the other person is determined, establishes by clear and	139
convincing evidence that the person survived the other person by	140
one hundred twenty hours.	141

(H) The provisions of divisions (A) to (G) of this section	142
are in addition to any other provisions of the Revised Code, the	143
Rules of Criminal Procedure, or the Rules of Evidence that pertain	144
to the determination of death and status of a person.	145

Sec. 2105.36.  A person who is not established by clear and	146
convincing evidence to have survived another specified person by	147
one hundred twenty hours shall not be deemed to have predeceased	148
the other person if any of the following apply:	149

(A) The governing instrument contains language dealing	150
explicitly with simultaneous deaths or deaths in a common	151
disaster, and that language is operative under the situation in	152
question.	153

(B) The governing instrument expressly indicates that a	154
person is not required to survive an event by any specified period	155
in order for any right or interest governed by the instrument to	156
properly vest or transfer.	157

(C) The governing instrument expressly requires the person to	158
survive the event for a specified period in order for any right or	159
interest governed by the instrument to properly vest or transfer,	160
and the survival of the event by the person or survival of the	161
event by the person for the specified period is established by	162
clear and convincing evidence.	163

(D) The imposition of a one-hundred-twenty-hour requirement	164
of the person's survival of the other specified person causes a	165
nonvested property interest or a power of appointment to be	166
invalid under section 2131.08 of the Revised Code, and the	167
person's survival of the other specified person is established by	168
clear and convincing evidence.	169

(E) The application of a one-hundred-twenty-hour	170
requirement of survival to multiple governing instruments would	171
result in an unintended failure or duplication of a disposition,	172
and the person's survival of the other specified person is	173
established by clear and convincing evidence.	174

Sec. 2105.37. (A) A payor or other third party is not liable	175
for any of the following:	176

(1) Making a payment, transferring an item of real or	177
personal property, or otherwise transferring any other benefit to	178
a person designated in a governing instrument who, under sections	179
2105.31 to 2105.39 of the Revised Code, is not entitled to the	180
payment or item of property, if the payment or transfer was made	181
before the payor or other third party received written notice of a	182
claimed lack of entitlement pursuant to sections 2105.31 to	183
2105.39 of the Revised Code;	184

(2) Taking any other action not specified in division	185
(A)(1) of this section in good faith reliance on the person's	186
apparent entitlement under the terms of the governing instrument	187
before the payor or other third party received written notice of a	188
claimed lack of entitlement pursuant to sections 2105.31 to	189
2105.39 of the Revised Code.	190

(B) A payor or other third party is liable for a payment,	191
transfer, or other action taken after the payor or other third	192
party receives written notice of a claimed lack of entitlement	193
pursuant to sections 2105.31 to 2105.39 of the Revised Code.	194

(C) Written notice of a claimed lack of entitlement under	195
divisions (A) or (B) of this section must be mailed to the payor's	196
or other third party's main office or home by registered or	197
certified mail, return receipt requested, or served upon the payor	198
or other third party in the same manner as a summons in a civil	199
action. Upon receipt of written notice of a claimed lack of	200
entitlement pursuant to sections 2105.31 to 2105.39 of the Revised	201
Code, a payor or other third party may pay any amount owed or	202
transfer or deposit any item of real or personal property held by	203
it to or with the probate court that has jurisdiction over the	204
decedent's estate. If no probate proceedings have been commenced,	205
upon receipt of written notice of a claimed lack of entitlement	206
pursuant to sections 2105.31 to 2105.39 of the Revised Code, a	207
payor or other third party may pay any amount owed or transfer or	208
deposit any item of real or personal property held by it to or	209
with the probate court located in the county of the decedent's	210
residence. The court shall hold the funds or real or personal	211
property until it is determined pursuant to sections 2105.31 to	212
2105.39 of the Revised Code to whom the funds or real or personal	213
property should be disbursed. The court then shall order	214
disbursement of the funds or real or personal property in	215
accordance with that determination. Payments, transfers, or	216
deposits made to or with the court discharge the payor or other	217
third party from all claims for the value of amounts paid to or	218
items of property transferred to or deposited with the court.	219

Sec. 2105.38. (A) A person who purchases real or personal	220
property that would otherwise be subject to sections 2105.31 to	221
2105.39 of the Revised Code for value and without notice that the	222
person selling or otherwise transferring the real or personal	223
property is not entitled to the real or personal property pursuant	224
to sections 2105.31 to 2105.39 of the Revised Code is neither	225
obligated under sections 2105.31 to 2105.39 of the Revised Code to	226
return the payment, item of property, or benefit nor liable under	227
sections 2105.31 to 2105.39 of the Revised Code for the amount of	228
the payment or the value of the item of property or benefit.	229

A person who receives a payment or other item of real or	230
personal property in partial or full satisfaction of a legally	231
enforceable obligation without notice that the person making the	232
payment or otherwise transferring the real or personal property is	233
not entitled to the real or personal property pursuant to sections	234
2105.31 to 2105.39 of the Revised Code is neither obligated under	235
sections 2105.31 to 2105.39 of the Revised Code to return the	236
payment, item of property, or benefit nor liable under sections	237
2105.31 to 2105.39 of the Revised Code for the amount of the	238
payment or the value of the item of property or benefit.	239

(B) A person who, not for value, receives a payment, item	240
of real or personal property, or any other benefit to which the	241
person is not entitled under sections 2105.31 to 2105.39 of the	242
Revised Code is obligated to return the payment, item of real or	243
personal property, or benefit, and is personally liable for the	244
amount of the payment or the value of the item of property or	245
benefit, to the person who is entitled to it under sections	246
2105.31 to 2105.39 of the Revised Code.	247

(C) If sections 2105.31 to 2105.39 of the Revised Code or	248
any provision of sections 2105.31 to 2105.39 of the Revised Code	249
are preempted by federal law with respect to a payment, an item of	250
real or personal property, or any other benefit covered by	251
sections 2105.31 to 2105.39 of the Revised Code, a person who, not	252
for value, receives the payment, item of property, or any other	253
benefit to which the person is not entitled under sections 2105.31	254
to 2105.39 of the Revised Code is obligated to return the payment,	255
item of property, or benefit, and is personally liable for the	256
amount of the payment or the value of the item of property or	257
benefit, to the person who would have been entitled to it were	258
sections 2105.31 to 2105.39 of the Revised Code or any provision	259
of sections 2105.31 to 2105.39 of the Revised Code not preempted.	260

Sec. 2105.39. (A) Sections 2105.31 to 2105.39 of the	261
Revised Code do not impair any act done in any proceeding, or any	262
right that accrued, before January 1, 2002. If a right is	263
acquired, extinguished, or barred upon the expiration of a	264
prescribed period of time that has commenced to run prior to	265
January 1, 2002, under any provision of the Revised Code, the	266
provision of the applicable section of the Revised Code applies	267
with respect to that right.	268

(B) Any rule of construction or presumption that is provided	269
in sections 2105.31 to 2105.39 of the Revised Code applies to any	270
governing instrument that is executed, or any multiple-party	271
account that is opened, prior to January 1, 2002, unless there is	272
a clear indication of a contrary intent in the governing	273
instrument or multiple-party account.	274

(C) If any provision of sections 2105.31 to 2105.39 of the	275
Revised Code or the application of those sections to any persons	276
or circumstance is held invalid, the invalidity does not affect	277
other provisions or applications of sections 2105.31 to 2105.39 of	278
the Revised Code that can be given effect without the invalid	279
provision or application.	280

Sec. 2106.04.  If the surviving spouse dies before probate of	281
the will, or, having survived the probate, thereafter either fails	282
to make the election provided by section 2106.01 of the Revised	283
Code or dies without having made an election within the times	284
described in division (E) of that section, the surviving spouse	285
shall be conclusively presumed to have elected to take under the	286
will, and the surviving spouse and the heirs, devisees, and	287
legatees of the surviving spouse, and those claiming through or	288
under them, shall be bound by the conclusive presumption, and	289
persons may deal with the property of the decedent accordingly;	290
provided that, if applicable, the provisions of section 2105.21	291
sections 2105.31 to 2105.39 of the Revised Code shall prevail over	292
the provisions relating to the right of election of a surviving	293
spouse.	294

Sec. 2107.34.  If, after making a last will and testament, a	295
testator has a child born alive, or adopts a child, or designates	296
an heir in the manner provided by section 2105.15 of the Revised	297
Code, or if a child or designated heir who is absent and reported	298
to be dead proves to be alive, and no provision has been made in	299
such will or by settlement for such pretermitted child or heir, or	300
for the issue thereof, the will shall not be revoked; but unless	301
it appears by such will that it was the intention of the testator	302
to disinherit such pretermitted child or heir, the devises and	303
legacies granted by such will, except those to a surviving spouse,	304
shall be abated proportionately, or in such other manner as is	305
necessary to give effect to the intention of the testator as shown	306
by the will, so that such pretermitted child or heir will receive	307
a share equal to that which such person would have been entitled	308
to receive out of the estate if such testator had died intestate	309
with no surviving spouse, owning only that portion of histhe	310
testator's estate not devised or bequeathed to or for the use and	311
benefit of a surviving spouse. If such child or heir dies prior	312
to the death of the testator, the issue of such deceased child or	313
heir shall receive the share the parent would have received if	314
living.	315

If such pretermitted child or heir supposed to be dead at the	316
time of executing the will has lineal descendants, provision for	317
whom is made by the testator, the other legatees and devisees need	318
not contribute, but such pretermitted child or heir shall take the	319
provision made for histhe pretermitted child's or heir's lineal	320
descendants or such part of it as, in the opinion of the probate	321
judge, may be equitable. In settling the claim of a pretermitted	322
child or heir, any portion of the testator's estate received by a	323
party interested, by way of advancement, is a portion of the	324
estate and shall be charged to the party who has received it.	325

Though measured by sections 2105.01 to 2105.21, inclusive,	326
Chapter 2105. of the Revised Code, the share taken by a	327
pretermitted child or heir shall be considered as a testate	328
succession. This section does not prejudice the right of any	329
fiduciary to act under any power given by the will, nor shall the	330
title of innocent purchasers for value of any of the property of	331
the testator's estate be affected by any right given by this	332
section to a pretermitted child or heir.	333

Sec. 2121.02.  (A) When such a presumption of death arises	334
under section 2121.01 of the Revised Code with respect to a person	335
who at the time of disappearance was domiciled in this state, the	336
attorney general of this state or any person entitled under the	337
last will of such presumed decedent or under sections 2105.06 to	338
2105.21Chapter 2105. of the Revised Code to any share in the	339
presumed decedent's property within this state, or any person or	340
entity who, under the terms of any contract, beneficiary	341
designation, trust, or otherwise, may be entitled to any property,	342
right, or interest by reason of the death of the presumed	343
decedent, may file a complaint setting forth the facts which raise	344
the presumption of death in the probate court of the county of the	345
presumed decedent's last residence.	346

(B) When a presumption of death arises pursuant to section	347
2121.01 of the Revised Code with respect to a person who at the	348
time of histhe person's disappearance was domiciled at a place	349
other than within the state, and the presumed decedent owns real	350
property within this state, the complaint may be filed in the	351
county where any part of the real property of the presumed	352
decedent is located by any of the persons or entities referred to	353
in division (A) of this section, or by any domiciliary executor or	354
administrator of the decedent. A foreign fiduciary shall include	355
with the complaint an exemplified copy of the domiciliary	356
proceedings pursuant to which the foreign fiduciary was appointed.	357

(C) In the case of a presumed decedent who was domiciled in	358
this state, the complainant shall name as parties defendant the	359
presumed decedent and each of the following that do not join in	360
the complaint:	361

(1) The presumed decedent's surviving spouse, if any;

362

(2) All persons known to the complainant who are entitled	363
under the presumed decedent's last will and all persons who are	364
entitled under sections 2105.06 to 2105.21Chapter 2105. of the	365
Revised Code to any share of the presumed decedent's property;	366

(3) All persons or entities known to the complainant who	367
have or would have by reason of the presumed decedent's death any	368
right or interest under any contract, beneficiary designation,	369
trust, or otherwise;	370

(4) All contract obligors known to the complainant whose	371
rights or obligations would be affected by a determination that	372
the presumed decedent is in fact dead.	373

(D) In the case of a presumed decedent who was not domiciled	374
in this state but who owned real estate in this state, the	375
complainant shall name as parties defendant each of the following	376
that do not join in the complaint:	377

(1) The presumed decedent's surviving spouse, if any;

378

(2) All persons known to the complainant who are entitled	379
under the presumed decedent's last will and all persons who are	380
entitled under sections 2105.06 to 2105.21Chapter 2105. of the	381
Revised Code to any share of the presumed decedent's real property	382
within this state.	383

(E) All parties defendant, other than the presumed decedent,	384
shall be served with summons in the same manner as provided by the	385
Rules of Civil Procedure.	386

(F) The complainant shall cause to be advertised once a week	387
for four consecutive weeks in a newspaper published in the county,	388
the fact that the complaint has been filed together with a notice	389
that on a day certain, which shall be at least four weeks after	390
the last appearance of the advertisement, or after the final	391
publication where any defendant is being served by publication,	392
whichever is later, the probate court will hear evidence relevant	393
to the allegations of the complaint.	394

(G) No guardian ad litem, trustee for the suit, or other	395
representative shall be required to be appointed to represent the	396
presumed decedent in the proceeding.	397

Sec. 2121.06.  Upon the signing of the decree establishing	398
the death of the presumed decedent, the real estate of the	399
presumed decedent passes and devloves as in the case of actual	400
death and the persons entitled by will, or under sections 2105.01	401
to 2105.21.Chapter 2105. of the Revised Code, may enter and take	402
possession. Persons taking the real estate may sell or mortgage it	403
and the purchaser or mortgagee takes a good title, free and	404
discharged of any interest or claim of the presumed decedent. The	405
persons taking such real estate shall not sell, convey, or	406
mortgage any part thereof within the three-year period specified	407
in section 2121.08 of the Revised Code without first giving bond	408
in an amount to be fixed by the probate court and with sureties to	409
be approved by the court. In the discretion of the court the bond	410
may be taken without sureties. Such bond shall be conditioned to	411
account for and pay over to the presumed decedent, in case within	412
the three-year period after the decree is entered by the court it	413
is established that the presumed decedent is still alive, the	414
value of the real estate sold or conveyed, or in the case of the	415
making of a mortgage, to pay the amount of the mortgage and	416
interest thereon, or in case of a foreclosure of such mortgage, to	417
account for and pay over the value of the real estate mortgaged.	418

Section 2. That existing sections 2105.02, 2105.04, 2105.07,	419
2105.08, 2106.04, 2107.34, 2121.02, and 2121.06, and section	420
2105.21 of the Revised Code are hereby repealed.	421

Section 3. Sections 1 and 2 of this act shall take effect on	422
January 1, 2002.	423