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Sub. H. B. No. 242As Reported by the House Civil and Commercial LawAs Reported by the House Civil and Commercial Law
124th General Assembly | Regular Session | 2001-2002 |
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REPRESENTATIVES Salerno, Willamowski, Latta, Seitz
A BILL
To amend sections 2105.02, 2105.04, 2105.07, 2105.08,
2106.04, 2107.34, 2121.02, and 2121.06, to enact
sections 2105.31 to 2105.39, and to repeal section
2105.21 of the Revised Code to enact the Uniform
Simultaneous Death Act effective January 1, 2002.
BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:
Section 1. That sections 2105.02, 2105.04, 2105.07, 2105.08,
2106.04, 2107.34, 2121.02, and 2121.06 be amended, and sections
2105.31, 2105.32, 2105.33, 2105.34, 2105.35, 2105.36, 2105.37,
2105.38, and 2105.39 of the Revised Code be enacted to read as
follows:
Sec. 2105.02. When, in
sections 2105.01 to 2105.21,
inclusive,
Chapter 2105. of the Revised
Code, a person is
described as living,
it means that
he
the
person was living at the
time
of the death of
the intestate from whom the estate came, and
when a person is
described as having died, it means that
he
the
person died
before
such intestate.
Sec. 2105.04. Permanent leasehold estates, renewable
forever, are subject to
sections 2105.01 to 2105.21, inclusive,
Chapter 2105. of
the Revised Code.
Sec. 2105.07. When, under
sections 2105.01 to 2105.21,
inclusive,
Chapter 2105. of the
Revised Code, personal property
escheats to the
state, the prosecuting
attorney of the county in
which letters of
administration are granted upon
such estate shall
collect and pay
it over to the county treasurer. Such
estate
shall be applied
exclusively to the support of the common schools
of
the county in
which collected.
Sec. 2105.08.
Sections 2105.01 to 2105.21, inclusive,
Chapter 2105. of the
Revised Code
apply
applies to any escheating
estate of which possession
has not been taken, or
which has not
been collected by the proper
officers of the state or those
acting
under their authority.
Right or claim of the state thereto is
hereby
relinquished to the
person who would have been entitled
thereto had such
sections been
in force when the intestate died.
Sec. 2105.31. As used in sections 2105.31 to 2105.39 of the
Revised Code: (A) "Co-owners with right of survivorship" includes joint
tenants, tenants by the entireties, and other co-owners of real or
personal property, insurance or other policies, or bank or other
accounts held under circumstances that entitle one or more persons
to the whole of the property or account on the death of the other
person or persons.
(B) "Governing instrument" means a deed, will, trust,
insurance or annuity policy, account with a transfer-on-death
designation or the abbreviation TOD, account with a
payable-on-death designation or the abbreviation POD, pension,
profit-sharing, retirement, or similar benefit plan, instrument
creating or exercising a power of appointment or a power of
attorney, or a dispositive, appointive, or nominative instrument
of any similar type.
(C) "Payor" means a trustee, insurer, business entity,
employer, governmental agency, political subdivision, or any other
person authorized or obligated by law or a governing instrument to
make payments or transfers.
(D) "Event" includes the death of another person.
Sec. 2105.32. (A) Except as provided in section 2105.36 of
the Revised Code, a person who is not established by clear and
convincing evidence to have survived another specified person by
one hundred twenty hours is deemed to have predeceased the other
person for the following purposes: (1) When the title to real or personal property or the
devolution of real or personal property depends upon a person's
survivorship of the death of another person;
(2) When the right to elect an interest in or exempt a
surviving spouse's share of an intestate estate under section
2105.06 of the Revised Code depends upon a person's survivorship
of the death of another person;
(3) When the right to elect an interest in or exempt an
interest of the decedent in the mansion house pursuant to section
2106.10 of the Revised Code depends upon a person's survivorship
of the death of another person; (4) When the right to elect an interest in or exempt an
allowance for support pursuant to section 2106.13 of the Revised
Code depends upon a person's survivorship of the death of another
person. (B) This section does not apply if its application would
result in a taking of an intestate estate by the state.
Sec. 2105.33. Except as provided in section 2105.36 of the
Revised Code, a person who is not established by clear and
convincing evidence to have survived a specified event by one
hundred twenty hours is deemed to have predeceased the event for
purposes of a provision of a governing instrument that relates to
the person surviving an event.
Sec. 2105.34. Except as provided in section 2105.36 of the
Revised Code:
(A) If it is not established by clear and convincing
evidence that one of two co-owners with right of survivorship in
specified real or personal property survived the other co-owner by
one hundred twenty hours, that property shall pass as if each
person had survived the other person by one-hundred twenty hours.
(B) If there are more than two co-owners with right of
survivorship in specified real or personal property and it is not
established by clear and convincing evidence that at least one of
the co-owners survived the others by one hundred twenty hours,
that property shall pass in the proportion that each person owns.
Sec. 2105.35. (A)(1) A person is dead if the person has
been determined to be dead pursuant to standards established under
section 2108.30 of the Revised Code.
(2) A physician who makes a determination of death in
accordance with section 2108.30 of the Revised Code and any person
who acts in good faith in reliance on a determination of death
made by a physician in accordance with that section is entitled to
the immunity conveyed by that section.
(B) A certified or authenticated copy of a death
certificate purporting to be issued by an official or agency of
the place where the death of a person purportedly occurred is
prima-facie evidence of the fact, place, date, and time of the
person's death and the identity of the decedent.
(C) A certified or authenticated copy of any record or
report of a domestic or foreign governmental agency that a person
is missing, detained, dead, or alive is prima-facie evidence of
the status and of the dates, circumstances, and places disclosed
by the record or report.
(D) In the absence of prima-facie evidence of death under
division (B) or (C) of this section, the fact of death may be
established by clear and convincing evidence, including
circumstantial evidence.
(E) Except as provided in division (F) of this section, a
presumption of the death of a person arises:
(1) When the person has disappeared and been continuously
absent from the person's place of last domicile for a five-year
period without being heard from during the period;
(2) When the person has disappeared and been continuously
absent from the person's place of last domicile without being
heard from and was at the beginning of the person's absence
exposed to a specific peril of death, even though the absence has
continued for less than a five-year period.
(F) When a person who is on active duty in the armed
services of the United States has been officially determined to be
absent in a status of "missing" or "missing in action," a
presumption of death arises when the head of the federal
department concerned has made a finding of death pursuant to the
"Federal Missing Persons Act," 80 Stat. 625 (1966), 37 U.S.C.A.
551, as amended.
(G) In the absence of evidence disputing the time of death
stipulated on a document described in division (B) or (C) of this
section, a document described in either of those divisions that
stipulates a time of death one hundred twenty hours or more after
the time of death of another person, however the time of death of
the other person is determined, establishes by clear and
convincing evidence that the person survived the other person by
one hundred twenty hours. (H) The provisions of divisions (A) through (G) of this
section are in addition to any other provisions of the Revised
Code, the Rules of Criminal Procedure, or the Rules of Evidence
that pertain to the determination of death and status of a person.
Sec. 2105.36. A person who is not established by clear
and
convincing evidence to have survived another specified person
by
one hundred twenty hours shall not be deemed to have
predeceased
the other person if any of the following apply:
(A) The governing instrument contains language dealing
explicitly with simultaneous deaths or deaths in a common
disaster, and that language is operative under the situation in
question.
(B) The governing instrument expressly indicates that a
person is not required to survive an event by any specified period
in order for any right or interest governed by the instrument to
properly vest or transfer. (C) The governing instrument expressly requires the person to
survive the event for a specified period in order for any right or
interest governed by the instrument to properly vest or transfer,
and the survival of the event by the person or survival of the
event by the person for the specified period is established by
clear and convincing evidence.
(D) The imposition of a one-hundred-twenty-hour requirement
of the person's survival of the other specified person causes a
nonvested property interest
or a power of appointment to be
invalid under section 2131.08 of
the Revised Code, and the
person's survival of the other specified person is
established by
clear and convincing evidence.
(E) The application of a one-hundred-twenty-hour
requirement of survival to multiple governing instruments would
result in an unintended failure or duplication of a disposition,
and the person's survival of the other specified person is
established by
clear and convincing evidence.
Sec. 2105.37. (A) A payor or other third party is not liable
for any of the following:
(1) Making a payment, transferring an item of real or
personal property, or otherwise transferring any other benefit to
a person designated in a governing instrument who, under sections
2105.31 to 2105.39 of the Revised Code, is not entitled to the
payment or item of property, if the payment or transfer was made
before the payor or other third party received written notice of a
claimed lack of entitlement pursuant to sections 2105.31 to
2105.39 of the Revised Code;
(2) Taking any other action not specified in division
(A)(1) of this section in good faith reliance on the person'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 pursuant to sections 2105.31 to
2105.39 of the Revised Code.
(B) A payor or other third party is liable for a payment,
transfer, or other action taken after the payor or other third
party receives written notice of a claimed lack of entitlement
pursuant to sections 2105.31 to 2105.39 of the Revised Code. (C) Written notice of a claimed lack of entitlement under
divisions (A) or (B) of this section must be mailed to the payor's
or other third party's main office or home by registered or
certified mail, return receipt requested, or served upon the payor
or other third party in the same manner as a summons in a civil
action. Upon receipt of written notice of a claimed lack of
entitlement pursuant to sections 2105.31 to 2105.39 of the Revised
Code, a payor or other third party may pay any amount owed or
transfer or deposit any item of real or personal property held by
it to or with the probate court that has jurisdiction over the
decedent's estate. If no probate proceedings have been commenced,
upon receipt of written notice of a claimed lack of entitlement
pursuant to sections 2105.31 to 2105.39 of the Revised Code, a
payor or other third party may pay any amount owed or transfer or
deposit any item of real or personal property held by it to or
with the probate court located in the county of the decedent's
residence. The court shall hold the funds or real or personal
property until it is determined pursuant to sections 2105.31 to
2105.39 of the Revised Code to whom the funds or real or personal
property should be disbursed. The court then shall order
disbursement of the funds or real or personal property in
accordance with that 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.
Sec. 2105.38. (A) A person who purchases real or personal
property that would otherwise be subject to sections 2105.31 to
2105.39 of the Revised Code for value and without notice that the
person selling or otherwise transferring the real or personal
property is not entitled to the real or personal property pursuant
to sections 2105.31 to 2105.39 of the Revised Code is neither
obligated under sections 2105.31 to 2105.39 of the Revised Code to
return the payment, item of property, or benefit nor liable under
sections 2105.31 to 2105.39 of the Revised Code for the amount of
the payment or the value of the item of property or benefit.
A person who receives a payment or other item of real or
personal property in partial or full satisfaction of a legally
enforceable obligation without notice that the person making the
payment or otherwise transferring the real or personal property is
not entitled to the real or personal property pursuant to sections
2105.31 to 2105.39 of the Revised Code is neither obligated under
sections 2105.31 to 2105.39 of the Revised Code to return the
payment, item of property, or benefit nor liable under sections
2105.31 to 2105.39 of the Revised Code for the amount of the
payment or the value of the item of property or benefit.
(B) A person who, not for value, receives a payment, item
of real or personal property, or any other benefit to which the
person is not entitled under sections 2105.31 to 2105.39 of the
Revised Code is obligated to return the payment, item of real or
personal property, or benefit, and 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 sections
2105.31 to 2105.39 of the Revised Code.
(C) If sections 2105.31 to 2105.39 of the Revised Code or
any provision of sections 2105.31 to 2105.39 of the Revised Code
are preempted by federal law with respect to a payment, an item of
real or personal property, or any other benefit covered by
sections 2105.31 to 2105.39 of the Revised Code, a person who, not
for value, receives the payment, item of property, or any other
benefit to which the person is not entitled under sections 2105.31
to 2105.39 of the Revised Code is obligated to return the payment,
item of property, or benefit, and 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
sections 2105.31 to 2105.39 of the Revised Code or any provision
of sections 2105.31 to 2105.39 of the Revised Code not preempted.
Sec. 2105.39. (A) Sections 3105.31 to 3105.39 of the
Revised Code do not impair any act done in any proceeding, or any
right that accrued, before January 1, 2002. If a right is
acquired, extinguished, or barred upon the expiration of a
prescribed period of time that has commenced to run prior to
January 1, 2002, under any provision of the Revised Code, the
provision of the applicable section of the Revised Code applies
with respect to that right. (B) Any rule of construction or presumption that is provided
in sections 3105.31 to 3105.39 of the Revised Code applies to any
governing instrument that is executed, or any multiple-party
account that is opened, prior to January 1, 2002, unless there is
a clear indication of a contrary intent in the governing
instrument or multiple-party account. (C) If any provision of sections 2105.31 to
2105.39 of the
Revised Code or the application of those sections
to any persons
or circumstance is held invalid, the invalidity
does not affect
other provisions or applications of sections
2105.31 to 2105.39 of
the Revised Code that can be given effect
without the invalid
provision or application.
Sec. 2106.04. If the surviving spouse dies before probate of
the will, or,
having survived the probate, thereafter either fails
to make the election
provided by section 2106.01 of the Revised
Code or dies without having made an
election within the times
described in division (E) of that section, the
surviving spouse
shall be conclusively presumed to have elected to take under
the
will, and the surviving spouse and the heirs, devisees, and
legatees of
the surviving spouse, and those claiming through or
under them, shall be bound
by the conclusive presumption, and
persons may deal with the property of the
decedent accordingly;
provided that, if applicable, the provisions of
section
2105.21
sections 2105.31 to 2105.39 of
the Revised Code shall prevail over
the provisions relating to the
right of election of a surviving
spouse.
Sec. 2107.34. If, after making a last will and testament, a
testator has a
child born alive, or adopts a child, or designates
an heir in the manner
provided by section 2105.15 of the Revised
Code, or if a child or designated
heir who is absent and reported
to be dead proves to be alive, and no
provision has been made in
such will or by settlement for such pretermitted
child or heir, or
for the issue thereof, the will shall not be revoked; but
unless
it appears by such will that it was the intention of the testator
to
disinherit such pretermitted child or heir, the devises and
legacies granted
by such will, except those to a surviving spouse,
shall be abated
proportionately, or in such other manner as is
necessary to give effect to the
intention of the testator as shown
by the will, so that such pretermitted
child or heir will receive
a share equal to that which such person would have
been entitled
to receive out of the estate if such testator had died intestate
with no surviving spouse, owning only that portion of
his
the
testator's estate not devised
or bequeathed to or for the use and
benefit of a surviving spouse. If such
child or heir dies prior
to the death of the testator, the issue of such
deceased child or
heir shall receive the share the parent would have received
if
living. If such pretermitted child or heir supposed to be dead at the
time of
executing the will has lineal descendants, provision for
whom is made by the
testator, the other legatees and devisees need
not contribute, but such
pretermitted child or heir shall take the
provision made for
his
the
pretermitted child's or heir's lineal
descendants or such part of it as, in the opinion of the probate
judge, may be
equitable. In settling the claim of a pretermitted
child or heir, any portion
of the testator's estate received by a
party interested, by way of
advancement, is a portion of the
estate and shall be charged to the party who
has received it. Though measured by
sections 2105.01 to 2105.21, inclusive,
Chapter 2105. of
the Revised
Code, the share taken by a
pretermitted child or heir
shall be considered as a
testate
succession. This section does
not prejudice the right of any
fiduciary
to act under any power
given by the will, nor shall the
title of innocent
purchasers for
value of any of the property of
the testator's estate be
affected
by any right given by this
section to a pretermitted child or
heir.
Sec. 2121.02. (A) When such a presumption of death arises
under section 2121.01 of the Revised Code with respect to a
person
who at the time of disappearance was domiciled in this
state, the
attorney general of this state or any person entitled
under the
last will of such presumed decedent or under
sections
2105.06 to
2105.21
Chapter 2105. of the Revised Code to any share in the
presumed
decedent's property within this state, or any person or
entity
who, under the terms of any contract, beneficiary
designation,
trust, or otherwise, may be entitled to any
property,
right, or
interest by reason of the death of the
presumed
decedent, may file
a complaint setting forth the facts
which raise
the presumption of
death in the probate court of the
county of the
presumed
decedent's last residence. (B) When a presumption of death arises pursuant to section
2121.01 of the Revised Code with respect to a person who at the
time of
his
the person's disappearance was domiciled at a place
other than
within the state, and the presumed decedent owns real
property
within this state, the complaint may be filed in the
county where
any part of the real property of the presumed
decedent is located
by any of the persons or entities referred to
in division (A) of
this section, or by any domiciliary executor or
administrator of
the decedent. A foreign fiduciary shall include
with the
complaint an exemplified copy of the domiciliary
proceedings
pursuant to which the foreign fiduciary was appointed. (C) In the case of a presumed decedent who was domiciled
in
this state, the complainant shall name as parties defendant
the
presumed decedent and each of the following that do not join
in
the complaint: (1) The presumed decedent's surviving spouse, if any; (2) All persons known to the complainant who are entitled
under the presumed decedent's last will and all persons who are
entitled under
sections 2105.06 to 2105.21
Chapter 2105. of the
Revised Code to
any share of the presumed decedent's property; (3) All persons or entities known to the complainant who
have or would have by reason of the presumed decedent's death any
right or interest under any contract, beneficiary designation,
trust, or otherwise; (4) All contract obligors known to the complainant whose
rights or obligations would be affected by a determination that
the presumed decedent is in fact dead. (D) In the case of a presumed decedent who was not
domiciled
in this state but who owned real estate in this state,
the
complainant shall name as parties defendant each of the
following
that do not join in the complaint: (1) The presumed decedent's surviving spouse, if any; (2) All persons known to the complainant who are entitled
under the presumed decedent's last will and all persons who are
entitled under
sections 2105.06 to 2105.21
Chapter 2105. of the
Revised Code to
any share of the presumed decedent's real property
within this
state. (E) All parties defendant, other than the presumed
decedent,
shall be served with summons in the same manner as
provided by the
Rules of Civil Procedure. (F) The complainant shall cause to be advertised once a
week
for four consecutive weeks in a newspaper published in the
county,
the fact that the complaint has been filed together with
a notice
that on a day certain, which shall be at least four
weeks after
the last appearance of the advertisement, or after
the final
publication where any defendant is being served by
publication,
whichever is later, the probate court will hear
evidence relevant
to the allegations of the complaint. (G) No guardian ad litem, trustee for the suit, or other
representative shall be required to be appointed to represent the
presumed decedent in the proceeding.
Sec. 2121.06. Upon the signing of the decree establishing
the death of the
presumed decedent, the real estate of the
presumed decedent passes and
devloves as in the case of actual
death and the persons entitled by will, or
under
sections 2105.01
to 2105.21.
Chapter 2105. of the Revised Code, may enter and take
possession.
Persons taking the real estate may sell or mortgage it
and the
purchaser or mortgagee takes a good title, free and
discharged of
any interest
or claim of the presumed decedent. The
persons
taking such real estate shall
not sell, convey, or
mortgage any
part thereof within the three-year period
specified
in section
2121.08 of the Revised Code without first giving bond
in
an amount
to be fixed by the probate court and with sureties to
be approved
by
the court. In the discretion of the court the bond
may be
taken without
sureties. Such bond shall be conditioned to
account
for and pay over to the
presumed decedent, in case within
the
three-year period after the decree is
entered by the court it
is
established that the presumed decedent is still
alive, the
value
of the real estate sold or conveyed, or in the case of the
making
of a mortgage, to pay the amount of the mortgage and
interest
thereon,
or in case of a foreclosure of such mortgage, to
account
for and pay over the
value of the real estate mortgaged.
Section 2. That existing sections 2105.02, 2105.04, 2105.07,
2105.08, 2106.04, 2107.34, 2121.02, and 2121.06, and section
2105.21 of the Revised Code are hereby repealed.
Section 3. Sections 1 and 2 of this act shall take effect on
January 1, 2002.
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