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[[Chapter 431, AInsurance Code@ (continued)]]
[[Sub-Chapter 431:10H, ALong-Term Care Insurance@ (continued)]]
[[Part IV, AUniversal Availability of Long-Term Care Insurance@]]

[[Note: this Section was not included in the original 1997 package of laws establishing reciprocal beneficiaries. Instead, it was a new law added to the HRS in 1999.]]
['431:10H-402]
Purchase of policy and payment of premiums on an individual's behalf.

    An insurer shall allow a person to purchase an individual or group long-term care insurance policy and pay the premiums for an individual or group long-term care insurance policy that covers the person, the person's spouse, or reciprocal beneficiary, as well as their parents and grandparents, and in-law parents and grandparents. Nothing in this section shall preclude an insurer from underwriting such a policy.

    [L 1999, c 93, pt of '2]

[[annotations:]]

[[Included as an annotation was a table comparing the Nation Association of Insurance Commissions= 1998 Model Act of Regulations with the Model Act quoted above. The table has not been included here.]]

[[Chapter 431L, AMedicaid-Related Mandates@]]

'431L-3
Coverage of children.

    (a) No insurer shall deny enrollment of a child under the health plan of the child's parent for the following grounds:

  1. The child was born out of wedlock;
  2. The child is not claimed as a dependent on the parent's federal tax return; or
  3. The child does not reside with the parent or in the insurer's service area.

    (b) Where a child has health coverage through an insurer of a noncustodial parent the insurer shall:

  1. Provide such information to the custodial parent as may be necessary for the child to obtain benefits through that coverage;
  2. Permit the custodial parent (or the provider, with the custodial parent's approval) to submit claims for covered services without the approval of the noncustodial parent; and
  3. Make payments on claims submitted in accordance with paragraph (2) directly to the custodial parent, the provider, or the state medicaid agency.

    (c) Where a parent is required by a court or administrative order to provide health coverage for a child, and the parent is eligible for family health coverage, as defined in section 431:10A-103 and reciprocal beneficiary family coverage, as defined in section 431:10A-601, the insurer shall be required:

  1. To permit the parent to enroll, under the family coverage or reciprocal beneficiary family coverage, a child who is otherwise eligible for the coverage without regard to any enrollment season restrictions;
  2. If the parent is enrolled but fails to make application to obtain coverage for the child, to enroll the child under family coverage or reciprocal beneficiary family coverage upon application of the child's other parent, the state agency administering the medicaid program, or the state agency administering the child support enforcement program; and
  3. Not to disenroll (or eliminate coverage of) the child unless the insurer is provided satisfactory written evidence that:
    1. The court or administrative order is no longer in effect; or
    2. The child is or will be enrolled in comparable health coverage through another insurer which will take effect not later than the effective date of disenrollment.

    (d) An insurer may not impose requirements on a state agency, which has been assigned the rights of an individual eligible for medical assistance under medicaid and covered for health benefits from the insurer, that are different from requirements applicable to an agent or assignee of any other individual so covered.

    [L 1995, c 83, pt of '2; am L 1997, c 383, '8]

'431L-4
Employer obligations.

    Where a parent is required by a court or administrative order to provide health coverage, which is available through an employer doing business in this State, the employer is required:

    (1) To permit the parent to enroll under family coverage, as defined in section 431:10A-103 or reciprocal beneficiary family coverage, as defined in section 431:10A-601, any child who is otherwise eligible for coverage without regard to any enrollment season restrictions;

    (2) If the parent is enrolled but fails to make application to obtain coverage of the child, to enroll the child under family coverage or reciprocal beneficiary family coverage upon application by the child's other parent, by the state agency administering the medicaid program, or by the state agency administering the child support enforcement program;

    (3) Not to disenroll (or eliminate coverage of) any such child unless the employer is provided satisfactory written evidence that:

  1. The court or administrative order is no longer in effect;
  2. The child is or will be enrolled in comparable coverage which will take effect no later than the effective date of disenrollment; or
  3. The employer has eliminated family health coverage or reciprocal beneficiary family coverage for all of its employees; and

    (4) To withhold from the employee's compensation the employee's share (if any) of premiums for health coverage and to pay this amount to the insurer.

    [L 1995, c 83, pt of '2; am L 1997, c 383, '9]

[[Chapter (Article) 432:1 AMutual Benefit Societies@]]
[[Part I, AGeneral Provisions@]]

[[No part of this Section directly mentions reciprocal beneficiaries, nor was the Section mentioned in the group of laws passed in 1997 establishing reciprocal-beneficiary rights and benefits. The Section is included here because the annotation contains a reference to reciprocal beneficiaries.]]
'432:1-101

Scope; exemptions.

    The provisions of this article shall apply to mutual benefit societies as defined herein. Except as expressly provided in this article, mutual benefit societies shall be exempt from the provisions of the insurance code. No law enacted after July 1, 1988, shall apply to mutual benefit societies unless such societies are expressly designated therein.

    [L 1987, c 347, pt of '2]

[[annotations:]]
Revision Note

"July 1, 1988," substituted for "the effective date of this article".

Attorney General Opinions
Based on provision, the requirement of '431:10A-601 as set forth in '4 of reciprocal beneficiaries act [L 1997, c 383] cannot be interpreted to apply to mutual benefit societies. Att. Gen. Op. 97-5.

'432:1-104
Definitions.

    For the purposes of this article:

    (1) Commissioner means the insurance commissioner of the State of Hawaii.

    (2) Mutual benefit society is any corporation, unincorporated association, society, or entity:

  1. Organized and carried on for the primary benefit of its members and their beneficiaries and not for profit, and:
    1. Making provision for the payment of benefits in case of sickness, disability, or death of its members, or disability, or death of its members' spouses or reciprocal beneficiaries or children, or
    2. Making provision for the payment of any other benefits to or for its members, whether or not the amount of the benefits is fixed or rests in the discretion of the society, its officers, or any other person or persons; and the fund from which the payment of the benefits shall be defrayed is derived from assessments or dues collected from its members, and the payment of death benefits is made to the families including reciprocal beneficiaries, heirs, blood relatives, or persons named by its members as their beneficiaries; or
  2. Organized and carried on for any purpose, which:
    1. Regularly requires money to be paid to it by its members, whether the money be in the form of dues, subscriptions, receipts, contributions, assessments or otherwise, and
    2. Provides for the payment of any benefit or benefits or the payment of any money or the delivery of anything of value to its members or their relatives including reciprocal beneficiaries, or to any person or persons named by its members as their beneficiaries, or to any class of persons which includes or may include its members, whether or not the amount or value of the benefit, benefits, money, or thing of value is fixed, or rests in the discretion of the society, its officers, or any other person or persons; or
  3. Organized and carried on for any purpose, whose requirements and provisions although not identical with, are determined by the commissioner to be substantially similar to, those enumerated in subparagraphs (A) and (B).

Participating in a prepaid legal service plan subject to chapter 488 shall not in itself make a corporation, unincorporated association, society, or entity a mutual benefit society and subject to this article.

    [L 1987, c 347, pt of '2; am L 1993, c 350, '18; am L 1997, c 383, '60]

[[annotations:]]

Attorney General Opinions

Effect of amendment to section [by L 1997, c 383] was to allow, but not require, a mutual benefit society to make provision for payment of benefits to reciprocal beneficiaries. Att. Gen. Op. 97-5.

[[Chapter (Article) 432:2 AFraternal Benefit Societies@]]
[[Part II, AMembership@]]

[[No part of this Section directly mentions reciprocal beneficiaries, nor was the Section mentioned in the group of laws passed in 1997 establishing reciprocal-beneficiary rights and benefits. The Section is included here because the annotation contains a reference to reciprocal beneficiaries.]]
'432:2-201

Qualifications for membership.

    (a) A society shall specify in its laws or rules:

  1. Eligibility standards for each and every class of membership, provided that if benefits are provided on the lives of children, the minimum age for adult membership shall be set at not less than age fifteen and not greater than age twenty-one;
  2. The process for admission to membership for each membership class; and
  3. The rights and privileges of each membership class, provided that only benefit members shall have the right to vote on the management of the insurance affairs of the society.

    (b) A society may also admit social members who shall have no voice or vote in the management of its insurance affairs.

    (c) Membership rights in the society are personal to the member and are not assignable.

    [L 1987, c 347, pt of '2]

[[annotations:]]
Attorney General Opinions

The division will be responsible for enforcement of health insurance provisions of the reciprocal beneficiaries act [L 1997, c 383], because those provisions are placed within the insurance code and, therefore, are within the commissioner's enforcement responsibility under subsection (b); those provisions can only be enforced against insurers, not employers. Att. Gen. Op. 97-10.

Case Notes
Commissioner's rulemaking authority enabled commissioner to adopt procedural mechanism, i.e., peer review process, through which guidelines for service provider fees and frequency of treatment may be exceeded. 927 F. Supp. 1330.

[[Chapter 432D, AHealth Maintenance Organization Act@]]

[[No part of this Section directly mentions reciprocal beneficiaries, nor was the Section mentioned in the group of laws passed in 1997 establishing reciprocal-beneficiary rights and benefits. The Section is included here because the annotation contains a reference to reciprocal beneficiaries.]]
'432D-23

Required provisions and benefits.

    Notwithstanding any provision of law to the contrary, each policy, contract, plan, or agreement issued in the State after January 1, 1995, by health maintenance organizations pursuant to this chapter, shall include benefits provided in sections 431:10-212, 431:10A-115, 431:10A-115.5, 431:10A-116, 431:10A-116.5, 431:10A-116.6, and 431:10A-119, and 431:10A-120 and chapter 431M.

    [L 1995, c 179, pt of '1; am L 1999, c 77, '8 and c 86, '4]

[[annotations:]]
Attorney General Opinions

No reference was made to new section added to article 10A of chapter 431 ['431:10A-601], by '4 of reciprocal beneficiaries act [L 1997, c 383]; thus, '431:10A-601 did not apply to health maintenance organizations. Att. Gen. Op. 97-5.

[[Chapter 443B, ACollection Agencies@]]

'443B-1
Definitions.

    As used in this chapter:

    "Client" means a person who offered or extended credit which created a debt, or to whom a debt is owed, and who engages the professional services of a collection agency. The term does not include any person who receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of a debt for another.

    ACollection agency" means any person, whether located within or outside this State, who by oneself or through others offers to undertake or holds oneself out as being able to undertake or does undertake to collect for another person, claims or money due on accounts or other forms of indebtedness for a commission, fixed fee, or a portion of the sums so collected.

    ACollection agency" includes:

  1. Any person using any name other than the person's own in collecting the person's own claims with the intention of conveying, or which tends to convey the impression that a third party has been employed;
  2. Any person who, in the conduct of the person's business for a fee, regularly repossesses any merchandise or chattels for another; and
  3. Any person who regularly accepts the assignment of claims or money due on accounts or other forms of indebtedness and brings suits upon the assigned claims or money due on accounts or other forms of indebtedness in the person's own name; provided that any suits shall be initiated and prosecuted by an attorney who shall have been appointed by the assignee.

    ACollection agency" does not include licensed attorneys at law acting within the scope of their profession, licensed real estate brokers, and salespersons residing in this State when engaged in the regular practice of their profession, nor banks, trust companies, building and loan associations, savings and loan associations, financial services loan companies, credit unions, companies doing an escrow business, individuals regularly employed on a regular wage or salary in the capacity of credit persons or in other similar capacity for a single employer who is not a collection agency, nor any public officer or any person acting under an order of court.

    ACommunication" means directly or indirectly conveying information regarding a debt to any person by any means.

    ADebt" means any obligation or alleged obligation of a consumer to pay money or other forms of payment arising out of a transaction in which the money, property, insurance, or services, which are the subject of the transaction, are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.

    ADebtor" means any person or the person's spouse or reciprocal beneficiary, parent (if the person is a minor), guardian, executor, or administrator obligated or allegedly obligated to pay a debt.

    ADepartment" means the department of commerce and consumer affairs.

    ADirector" means the director of commerce and consumer affairs.

    AMaterial change" means any change of circumstance which might affect a collection agency's registration, including the assigning, selling, leasing, encumbering, or other transfer of the rights, privileges, and obligations of a collection agency, whether voluntarily or involuntarily or directly or indirectly, including by transfer of fifty-one per cent of control of any collection agency, whether by change in ownership or otherwise.

    APrincipal collector" means an individual who has been designated by a collection agency to assume responsibility for the operations and activities of the agency's office in this State.

    ARegularly repossesses" means to locate, confiscate, and return merchandise or chattels to a client whenever the client requires service.

    ARegular practice" means duties being of the sort or kind that are expected, ordinary, or typical of the profession.

    ARegular wage or salary" means the expected, ordinary, or typical payment for employment.

    [L 1987, c 191, pt of '1; am L 1989, c 140, '2 and c 266, '3; am L 1990, c 246, '2; am L 1992, c 12, '1 and c 202, '58; am L 1997, c 383, '61; am L 1999, c 254, '3]

[[Chapter 453, AMedicine and Surgery@]]
[[Part I, AGenerally@]]

'453-15
Who shall give consent to a postmortem examination.

    A pathologist or any licensed physician or surgeon may conduct a postmortem examination when written consent thereto is given by whoever of the following assumes custody of the body for purposes of burial: father, mother, husband, wife, reciprocal beneficiary, child, guardian, next of kin, or, in the absence of any of the foregoing, a friend or person, including a governmental agency, charged by law with the responsibility for the burial.

    If two or more such persons assume custody of the body, the consent of one of them is sufficient. The consent shall include the consent to the retention by the pathologist or licensed physician or surgeon who conducts the postmortem examination of tissues, including fetal material, of the body removed at the time of the postmortem examination to be used for necessary or advisable scientific investigation, including research, teaching, and therapeutic purposes.

    [L 1957, c 309, '1; Supp, '64-14; am L 1967, c 188, '1; HRS '453-15; am L 1997, c 383, '62]

[[Chapter 509, AConveyances to Two or More@]]

'509-2
Creation of joint tenancy, tenancy by the entirety, and tenancy in common.

    (a) Land, or any interest therein, or any other type of property or property rights or interests or interest therein, may be conveyed by a person to oneself and another or others as joint tenants, or by a person to oneself and one's spouse or reciprocal beneficiary, or by spouses to themselves, or by reciprocal beneficiaries to themselves, as tenants by the entirety, or by joint tenants to themselves and another or others as joint tenants, or tenants in common to themselves or to themselves and another or others as joint tenants, or by tenants by the entirety to themselves or themselves and another or others as joint tenants or as tenants in common, or by one tenant by the entirety to the tenant's spouse or reciprocal beneficiary of all of the tenant's interest or interests, without the necessity of conveying through a third party, and each such instrument shall be construed as validly creating a joint tenancy, tenancy by the entirety, tenancy in common, or single ownership, as the case may be, if the tenor of the instrument manifestly indicates such intention.

    (b) For the purposes of this chapter: "Reciprocal beneficiary" means an adult who is a party to a registered reciprocal beneficiary relationship in accordance with chapter 572C, and has a valid certificate of reciprocal beneficiary relationship that has not been terminated.

    [L 1941, c 167, '1; RL 1945, '12781; RL 1955, '345-2; am L 1957, c 237, '1; HRS '509-2; gen ch 1993; am L 1997, c 383, '10]

[[annotations:]]
Case Notes

An estate by the entirety is not subject to claims of creditors of one of the spouses. 57 H. 608, 561 P.2d 1291.

Right of survivorship of a joint tenant is subject to levy. 59 H. 277, 580 P.2d 843.

Section states no presumption in favor of tenancy in common. 59 H. 474, 583 P.2d 966.

Property management agreement neither conveyed property nor altered the tenancy by the entirety; purpose of section and relevant antecedent is to eliminate common law requisite of a "straw man" in creating a joint tenancy. 64 H. 236, 639 P.2d 400.

[[Chapter 516, AResidential Leaseholds@]]
[[Part III, ARights of Lessees@]]

'516-71

Residential lease; disclosure.

    (a) Except as otherwise provided for in this section, for any sale of a leasehold residential lot, no later than ten calendar days after the acceptance of the deposit, receipt, offer, and acceptance contract (DROA) or other similar contract, the seller shall directly or through the seller's agent provide to the buyer, a copy of the original recorded lease and any amendments thereto for the buyer's approval and acceptance. A sale for the purposes of this subsection shall not be deemed to include any transfer to a co-owner, or to a spouse or reciprocal beneficiary, parent or child of the seller, or to any stranger by devise, descent, court order, or by operation of law, including, but not limited to, any transfer by foreclosure, bankruptcy, or partition sale. Upon receipt of the original lease and amendments thereto, the buyer shall have ten calendar days to review, accept, or reject the terms of the lease.

    (b) In addition to the requirements set forth in subsection (a), the buyer shall acknowledge receipt of the lease documents specified under subsection (a) through a signed receipt or a signed DROA or other contract. The receipt or contract shall include at least the following information:

  1. A standardized summary, as set forth on the optional standardized summary form in this chapter, or in a form similar to the optional standardized summary form, of the lease provisions in plain language which shall contain information on the following: the length of the lease, lease rent terms, lease rent renegotiation dates, how renegotiated lease rents will be calculated; and surrender clause provisions;
  2. A standardized glossary, satisfied by use of a Hawaii governmental publication, of commonly used lease terms in plain language; and
  3. A statement that the buyer has read and understands the provisions of the standardized summary of the lease provisions.

    (c) Within ten calendar days of acknowledged receipt of the contract specified in subsection (a), the buyer shall have the right to cancel the offer to purchase with no loss of deposit.

    (d) The seller and buyer, on a standardized form, may agree to reduce or extend the time period provided herein for production and review of the applicable lease documents; provided that the agreement shall not constitute a waiver of the requirement to provide the applicable lease documents to the buyer. Buyers other than natural persons may waive, in writing, all the requirements of this section.

    [L 1989, c 168, '3; am L 1990, c 277, pt of '1; am L 1991, c 276, '3; am L 1997, c 383, '63]

[[Chapter 560, AUniform Probate Code@]]
[[Sub-Chapter (Article) 560:1, AShort Title, Construction, General Provisions@]]
[[Part 2, ADefinitions@]]

'560:1-201
General definitions.

    Subject to additional definitions contained in the subsequent articles that are applicable to specific articles, parts, or sections, and unless the context otherwise requires, in this chapter:

    "Agent" includes an attorney-in-fact under a durable or nondurable power of attorney, an individual authorized to make decisions concerning another's health care, and an individual authorized to make decisions for another under a natural death act.

    AApplication" means a written request to the registrar for an order of informal probate or appointment under part 3 of article III.

    ABeneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust, includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", refers to a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death; and, as it relates to a "beneficiary designated in a governing instrument", includes a grantee of a deed, a devisee, a trust beneficiary, a beneficiary of a beneficiary designation, a donee, appointee, or taker in default of a power of appointment, or a person in whose favor a power of attorney or a power held in any individual, fiduciary, or representative capacity is exercised.

    ABeneficiary designation" refers to a governing instrument naming a beneficiary of an insurance or annuity policy, of an account with POD designation, of a security registered in beneficiary form (TOD), or of a pension, profit-sharing, retirement, or similar benefit plan, or other nonprobate transfer at death.

    AChild" includes an individual entitled to take as a child under this chapter by intestate succession from the parent whose relationship is involved and excludes a person who is only a stepchild, a foster child, a grandchild, or any more remote descendant.

    AClaims", in respect to estates of decedents and protected persons, includes liabilities of the decedent or protected person, whether arising in contract, in tort, or otherwise, and liabilities of the estate which arise at or after the death of the decedent or after the appointment of a conservator, including funeral expenses and expenses of administration. The term does not include estate or inheritance taxes, or demands or disputes regarding title of a decedent or protected person to specific assets alleged to be included in the estate.

    ACourt" means the circuit court in this State having jurisdiction in matters relating to the affairs of decedents.

    AConservator" means a person who is appointed by a court to manage the estate of a protected person, including a guardian of the property.

    ADescendant" of an individual means all of the individual's descendants of all generations, with the relationship of parent and child at each generation being determined by the definition of child and parent contained in this chapter.

    ADevise", when used as a noun, means a testamentary disposition of real or personal property and, when used as a verb, means to dispose of real or personal property by will.

    ADevisee" means a person designated in a will to receive a devise. For the purposes of article II, in the case of a devise to an existing trust or trustee, or to a trustee on trust described by will, the trust or trustee is the devisee and the beneficiaries are not devisees.

    ADisability" means cause for a protective order as described in section 560:5-401.

    ADistributee" means any person who has received property of a decedent from the decedent's personal representative other than as a creditor or purchaser. A testamentary trustee is a distributee only to the extent of distributed assets or increment thereto remaining in the trustee's hands. A beneficiary of a testamentary trust to whom the trustee has distributed property received from a personal representative is a distributee of the personal representative. For the purposes of this provision, "testamentary trustee" includes a trustee to whom assets are transferred by will, to the extent of the devised assets.

    AEstate" includes the property of the decedent, trust, or other person whose affairs are subject to this chapter as originally constituted and as it exists from time to time during administration.

    AExempt property" means that property of a decedent's estate which is described in section 560:2-403.

    AFiduciary" includes a personal representative, guardian, conservator, and trustee.

    AForeign personal representative" means a personal representative appointed by another jurisdiction.

    AFormal proceedings" means proceedings conducted before a judge with notice to interested persons.

    AGoverning instrument" means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), 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.

    AGuardian" means a person who has qualified as a guardian of a minor or incapacitated person pursuant to testamentary or court appointment, but excludes one who is merely a guardian ad litem.

    AHeirs", except as controlled by section 560:2-711, means persons, including the surviving spouse or reciprocal beneficiary and the State, who are entitled under the statutes of intestate succession to the property of a decedent.

    AIncapacitated person" means an individual described in section 560:5-101.

    AInformal proceedings" means those conducted without notice to interested persons by an officer of the court acting as a registrar for probate of a will or appointment of a personal representative.

    AInterested person" includes heirs, devisees, children, spouses or reciprocal beneficiaries, creditors, beneficiaries, and any others having a property right in or claim against a trust estate or the estate of a decedent, ward, or protected person. It also includes persons having priority for appointment as personal representative, and other fiduciaries representing interested persons. The meaning as it relates to particular persons may vary from time to time and must be determined according to the particular purposes of, and matter involved in, any proceeding.

    AIssue" of a person means descendant as defined in this section.

    AJoint tenants with the right of survivorship" and "community property with the right of survivorship" includes tenancies by the entirety and co-ownership of property held under circumstances that entitle one or more owners to the whole of the property on the death of the other or others, but excludes forms of co-ownership registration in which the underlying ownership of each party is in proportion to that party's contribution.

    ALease" includes an oil, gas, or other mineral lease.

    ALetters" includes letters testamentary, letters of guardianship, letters of administration, and letters of conservatorship. Unless otherwise provided by order of the court or registrar, letters testamentary and letters of administration shall only be effective for three years unless renewed for good cause, and such limitation shall be stated on the face of the letters.

    AMinor" means a person who is under eighteen years of age.

    AMortgage" means any conveyance, agreement, or arrangement in which property is encumbered or used as security.

    ANonresident decedent" means a decedent who was domiciled in another jurisdiction at the time of decedent's death.

    AOrganization" means a corporation, business trust, estate, trust, partnership, joint venture, association, government or governmental subdivision or agency, or any other legal or commercial entity.

    AParent" includes any person entitled to take, or who would be entitled to take if the child died without a will, as a parent under this chapter by intestate succession from the child whose relationship is in question and excludes any person who is only a stepparent, foster parent, or grandparent.

    APayor" means a trustee, insurer, business entity, employer, government, governmental agency or subdivision, or any other person authorized or obligated by law or a governing instrument to make payments.

    APerson" means an individual or an organization.

    APersonal representative" includes executor, administrator, successor personal representative, special administrator, and persons who perform substantially the same function under the law governing their status. "General personal representative" excludes special administrator.

    APetition" means a written request to the court for an order after notice.

    AProceeding" includes action at law and suit in equity. "Property" includes both real and personal property or any interest therein and means anything that may be the subject of ownership.

    AProtected person" is as defined in section 560:5-101.

    AProtective proceeding" means a proceeding described in section 560:5-101.

    ARegistrar" refers to the official of the court designated to perform the functions of registrar as provided in section 560:1-307.

    ASecurity" includes any note, stock, treasury stock, bond, debenture, evidence of indebtedness, certificate of interest or participation in an oil, gas, or mining title or lease or in payments out of production under such a title or lease, collateral trust certificate, transferable share, voting trust certificate or, in general, any interest or instrument commonly known as a security, or any certificate of interest or participation, any temporary or interim certificate, receipt, or certificate of deposit for, or any warrant or right to subscribe to or purchase, any of the foregoing.

    ASettlement", in reference to a decedent's estate, includes the full process of administration, distribution, and closing.

    ASpecial administrator" means a personal representative as described by sections 560:3-614 through 560:3-618.

    AState" means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession subject to the jurisdiction of the United States.

    ASuccessor personal representative" means a personal representative, other than a special administrator, who is appointed to succeed a previously appointed personal representative.

    ASuccessors" means persons, other than creditors, who are entitled to property of a decedent under the decedent's will or this chapter.

    ASupervised administration" refers to the proceedings described in article III, part 5.

    ASurvive" means that an individual has neither predeceased an event, including the death of another individual, nor is deemed to have predeceased an event under section 560:2-104 or 560:2-702. The term includes its derivatives, such as "survives", "survived", "survivor", "surviving".

    ATestacy proceeding" means a proceeding to establish a will or determine intestacy.

    ATestator" includes an individual of either sex.

    ATrust" includes an express trust, private or charitable, with additions thereto, wherever and however created. The term also includes a trust created or determined by judgment or decree under which the trust is to be administered in the manner of an express trust. The term excludes other constructive trusts and excludes resulting trusts, conservatorships, personal representatives, trust accounts as defined in article VI, custodial arrangements pursuant to chapters 553A and 554B, business trusts providing for certificates to be issued to beneficiaries, common trust funds, voting trusts, security arrangements, liquidation trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, wages, profits, pensions, or employee benefits of any kind, and any arrangement under which a person is nominee or escrowee for another.

    ATrustee" includes an original, additional, or successor trustee, whether or not appointed or confirmed by court.

    AWard" means an individual described in section 560:5-101.

    AWill" includes codicil and any testamentary instrument that merely appoints an executor, revokes or revises another will, nominates a guardian, or expressly excludes or limits the right of an individual or class to succeed to property of the decedent passing by intestate succession.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[annotations:]]
Case Notes

Appellant was not an "interested person", as defined in this section, who could petition the court under '560:3-614 for appointment as special administrator where appellant had no familial relationship to decedent=s family, did not have a property right or claim against decedent=s estate, and did not have priority under '560:3-203 to be appointed as personal representative of decedent=s estate; circuit court thus properly denied appellant=s petition. 88 H. 148, 963 P.2d 1124.

Decisions under prior law. Hearing on complaint for determination and declaration of heirs was not a probate proceeding. 77 H. 251 (App.), 883 P.2d 673.

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@]]
[[Part I.]]

'560:2-102
Share of spouse or reciprocal beneficiary.

The intestate share of a decedent's surviving spouse or reciprocal beneficiary is:

    (1) The entire intestate estate if:

  1. No descendant or parent of the decedent survives the decedent; or
  2. All of the decedent's surviving descendants are also descendants of the surviving spouse or reciprocal beneficiary and there is no other descendant of the surviving spouse or reciprocal beneficiary who survives the decedent;

    (2) The first $200,000, plus three-fourths of any balance of the intestate estate, if no descendant of the decedent survives the decedent, but a parent of the decedent survives the decedent;

    (3) The first $150,000, plus one-half of any balance of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse or reciprocal beneficiary and the surviving spouse or reciprocal beneficiary has one or more surviving descendants who are not descendants of the decedent; or

    (4) The first $100,000, plus one-half of any balance of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse or reciprocal beneficiary.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-103
Share of heirs other than surviving spouse or reciprocal beneficiary.

    Any part of the intestate estate not passing to the decedent's surviving spouse or reciprocal beneficiary under section 560:2-102, or the entire intestate estate if there is no surviving spouse or reciprocal beneficiary, passes in the following order to the individuals designated below who survive the decedent:

  1. To the decedent's descendants by representation;
  2. If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent; provided, however, if the decedent is a minor, and if it is shown by clear and convincing evidence that any parent has:
    1. Deserted the child without affording means of identification for a period of at least ninety days;
    2. Failed to communicate with the child when able to do so for a period of at least one year when the child is in the custody of another; or
    3. Failed to provide for care and support of the child when able to do so for a period of at least one year when the child is in the custody of another despite a child support order requiring such support; such parent shall be deemed to have predeceased the decedent;
  3. If there is no surviving descendant or parent entitled to inherit, to the descendants of the decedent's parents or either of them by representation; and
  4. If there is no surviving descendant, parent entitled to take, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half.

    [L 1996, c 288, pt of '1; am L 1997, c 244, '15 and c 383, '19]

[[annotations:]]

Rules of Court

Determination of heirs, see HPR rule 73.

'560:2-114
Parent and child relationship.

    (a) Except as provided in subsections (b) and (c), for purposes of intestate succession by, through, or from a person, an individual is the child of the child's natural parents, regardless of their marital status. The parent and child relationship may be established under chapter 584.

    (b) An adopted individual is the child of the child's adopting parent or parents and not of the child's natural parents, except that:

  1. Adoption of a child by the spouse or reciprocal beneficiary of either natural parent has no effect on:
    1. The relationship between the child and that natural parent; or
    2. The right of the child or a descendant of the child to inherit from or through the other natural parent; and
  2. Adoption of a child during such child's minority by the spouse or reciprocal beneficiary of a natural parent of the child, by a natural grandparent, aunt, uncle, or sibling of the child or the spouse or reciprocal beneficiary of a natural grandparent, aunt, uncle, or sibling of the child has no effect on the relationship between the child and either natural parent, for the limited purpose of interpretation or construction of a disposition in any will, trust, or other lifetime instrument, whether executed before or after the order of adoption, and for the purposes of determining the heirs at law of a natural family member of the child.

    (c) Inheritance from or through a child by either natural parent or the parent's kindred is precluded unless that natural parent has openly treated the child as the natural parent's, and has not refused to support the child.

    (d) For the purposes of this section, if a person has been adopted more than once, the term "natural parent" includes an adopting parent by an earlier adoption.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

[[Chapter 560, AUniform Probate Code@ (continued)]]
[[Sub-Chapter (Article) 560:2, AIntestate Successions and Wills@ (continued)]]
[[Part II, AElective Share of Surviving Spouse@]]

Cross References [[For This Part]]

Applies only to the estates of decedents dying after January 1, 1997; for other effect and transition provisions, see '560:8-201.

 

'560:2-201
Definitions.
In this part: As used in sections other than section 560:2-205,

    "decedent's nonprobate transfers to others" means the amounts that are included in the augmented estate under section 560:2-205.

    AFractional interest in property held in joint tenancy with the right of survivorship", whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants.

    AMarriage", as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse.

    ANonadverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that the person possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property.

    APower" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation.

    APresently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not the decedent then had the capacity to exercise the power, held a power to create a present or future interest in the decedent's self, the decedent's creditors, the decedent's estate, or creditors of the decedent's estate, and includes a power to revoke or invade the principal of a trust or other property arrangement.

    AProbate estate" means property that would pass by intestate succession if the decedent died without a valid will.

    AProperty" includes values subject to a beneficiary designation.

    AReciprocal beneficiary" means an adult who is a party to a registered reciprocal beneficiary relationship in accordance with chapter 572C, and has a valid certificate of reciprocal beneficiary relationship that has not been terminated.

    AReciprocal beneficiary relationship" is the registered status of two adults defined in chapter 572C.

    ARight to income" includes a right to payments under a commercial or private annuity, an annuity trust, a unitrust, or a similar arrangement.

    ATransfer", as it relates to a transfer by or of the decedent, includes:

  1. An exercise or release of a presently exercisable general power of appointment held by the decedent;
  2. A lapse at death of a presently exercisable general power of appointment held by the decedent; and
  3. An exercise, release, or lapse of a general power of appointment that the decedent created in the decedent's self of a power described in section 560:2-205(2)(B) that the decedent conferred on a nonadverse party.

[L 1996, c 288, pt of '1; am L 1997, c 383, '11]

[[annotations:]]
Cross References

Applies only to the estates of decedents dying after January 1, 1997; for other effect and transition provisions, see '560:8-201.

'560:2-202
Elective share.

    (a) Elective-share amount. The surviving spouse or reciprocal beneficiary of a decedent who dies domiciled in this State has a right of election, under the limitations and conditions stated in this part, to take an elective-share amount equal to the value of the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, or the reciprocal beneficiary and the decedent were in a reciprocal beneficiary relationship, in accordance with the following schedule:

If the decedent and the spouse were married to each other, or the decedent and the reciprocal beneficiary were in a relationship: The elective-share percentage is:
Less than 1 year Supplemental amount only.
1 year but less than 2 years 3% of the augmented estate.

2 years but less than 3 years

6% of the augmented estate.

3 years but less than 4 years

9% of the augmented estate.

4 years but less than 5 years 

12% of the augmented estate.

5 years but less than 6 years 

15% of the augmented estate.

6 years but less than 7 years 

18% of the augmented estate.

7 years but less than 8 years

21% of the augmented estate.

8 years but less than 9 years

24% of the augmented estate.

9 years but less than 10 years 

27% of the augmented estate.

10 years but less than 11 years

30% of the augmented estate.

11 years but less than 12 years 

34% of the augmented estate.

12 years but less than 13 years 

38% of the augmented estate.

13 years but less than 14 years 

42% of the augmented estate.

14 years but less than 15 years

46% of the augmented estate.
15 years or more  50% of the augmented estate;
provided, however, the surviving spouse or reciprocal beneficiary may elect to take a share smaller than that to which the surviving spouse or reciprocal beneficiary is entitled hereunder.

    (b) Supplemental elective-share amount. If the sum of the amounts described in sections 560:2-207, 560:2-209(a)(1), and that part of the elective-share amount payable from the decedent's probate estate and nonprobate transfers to others under section 560:2-209(b) and (c) is less than $50,000, the surviving spouse or reciprocal beneficiary is entitled to a supplemental elective-share amount equal to $50,000 minus the sum of the amounts described in those sections. The supplemental elective-share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in section 560:2-209(b) and (c).

    (c) Effect of election on statutory benefits. If the right of election is exercised by or on behalf of the surviving spouse or reciprocal beneficiary, the surviving spouse's or reciprocal beneficiary's homestead allowance, exempt property, and family allowance, if any, are not charged against but are in addition to the elective-share and supplemental elective-share amounts.

    (d) Non-domiciliary. The right, if any, of the surviving spouse or reciprocal beneficiary of a decedent who dies domiciled outside this State to take an elective share in property in this State is governed by the law of the decedent's domicile at death.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '12]

[[annotations:]]
Rules of Court

Distribution, see HPR rule 90(c).

'560:2-203
Composition of the augmented estate.

    Subject to section 560:2-208, the value of the augmented estate, to the extent provided in sections 560:2-204, 560:2-205, 560:2-206, and 560:2-207, consists of the sum of the values of all property, whether real or personal; movable or immovable, tangible or intangible, wherever situated, that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, the decedent's nonprobate transfers to the surviving spouse or reciprocal beneficiary, and the surviving spouse's or reciprocal beneficiary's property and nonprobate transfers to others.

    [L 1996, c 288, pt of '1; am L 1997, c 383, '19]

'560:2-205
Decedent's nonprobate transfers to others.

    The value of the augmented estate includes the value of the decedent's nonprobate transfers to others, not included under section 560:2-204, of any of the following types, in the amount provided respectively for each type of transfer:

  1. Property owned or owned in substance by the decedent immediately before death that passed outside probate at the decedent's death. Probate included under this category consists of:
    1. Property over which the decedent alone, immediately before death, held a presently exercisable general power of appointment. The amount included is the value of the property subject to the power, to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary;
    2. The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship. The amount included is the value of the decedent's fractional interest, to the extent the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse or reciprocal beneficiary;
    3. The decedent's ownership interest in property or accounts held in POD, TOD, or co-ownership registration with the right of survivorship. The amount included is the value of the decedent's ownership interest, to the extent the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary. As used herein, "ownership interest" is determined by dividing
      1. the sum of all the decedent's deposits to the account, including deposit life insurance proceeds added to the account on account of the decedent's death, less all withdrawals made by or for the benefit of the decedent, by
      2. the sum of all deposits to the account;
    4. Proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds. The amount included is the value of the proceeds, to the extent they were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary;
  2. Property transferred in any of the following forms by the decedent during marriage:
    1. Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent the decedent's right terminated at or continued beyond the decedent's death. The amount included is the value of the fraction of the property to which the decedent's right related, to the extent the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary;
    2. Any transfer in which the decedent created a power over income or property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, to or for the benefit of the decedent, creditors of the decedent, the decedent's estate, or creditors of the decedent's estate. The amount included with respect to a power over property is the value of the property subject to the power, and the amount included with respect to a power over income is the value of the property that produces or produced the income, to the extent the power in either case was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or reciprocal beneficiary or to the extent the property passed at the decedent's death, by exercise, release, lapse, in default, or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary. If the power is a power over both income and property and the preceding sentence produces different amounts, the amount included is the greater amount;
  3. Property that passed during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:
    1. Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under paragraph (1)(A), (B), or (C), or under paragraph (2), if the right, interest, or power had not terminated until the decedent's death. The amount included is the value of the property that would have been included under those paragraphs if the property were valued at the time the right, interest, or power terminated, and is included only to the extent the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse or reciprocal beneficiary, or surviving spouse or reciprocal beneficiary. As used in this subparagraph, "termination", with respect to a right or interest in property, occurs when the right or interest terminated by the terms of the governing instrument or the decedent transferred or relinquished the right or interest, and, with respect to a power over property, occurs when the power terminated by exercise, release, lapse, default, or otherwise, but, with respect to a power described in paragraph (1)(A), "termination" occurs when the power terminated by exercise or release, but not otherwise;
    2. Any transfer of or relating to an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under paragraph (1)(D) had the transfer not occurred. The amount included is the value of the insurance proceeds to the extent the proceeds were payable at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse or reciprocal beneficiary;
    3. Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse or reciprocal beneficiary. The amount included is the value of the transferred property to the extent the aggregate transfers to any one donee in either of the two years exceeded $20,000.

    [L 1996, c 288, pt of '1; am L 1997, c 244, '1 and c 383, '19]