COMMITTEE ON RULES AND JUDICIARY




                            BILL NO.                  28-0087

      Twenty-Eighth Le...
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 1   § 1-102. Purposes; Rule of Construction.

 2          (a)     This title must be liberally construed and applied ...
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 1   §1-105. Construction Against Implied Repeal.

 2          This title is intended as a unified coverage of its sub...
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 1           (3)            A certified or authenticated copy of any record or report of a

 2   governmental agency, ...
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1    modification or termination of a trust or to deviation from its terms, the sole holder or all co

2    holders of...
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 1   purpose of Section 2-405, the periodic installment amount is the lump-sum amount divided

 2   by 12. If the CPI ...
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1                   similar benefit plan, or other nonprobate transfer at death; and, as it

2                   relat...
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 1           (8)     "Court" means the Superior Court of the Virgin Islands or DIVISION

 2   of the Superior Court ha...
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1           (13)    "Estate" includes the property of the decedent, trust, or other person

2    whose affairs are sub...
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1           (23)    "Interested person" , according to the particular purpose of or matter

2    involved in a procee...
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 1             (31)   "Organization" means a corporation, business trust, estate, trust,

 2   partnership, joint ven...
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1            (42)    "Registrar" means the official of the court designated to perform the

2    functions of Registr...
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 1           (49)    "Successors" mean persons, other than creditors, who are entitled to

 2   property of a deceden...
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 1          (56)    "Ward" means an individual described in section 5-102.

 2          (57)    "Will" includes codic...
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 1          (c)     The Court has jurisdiction over protective proceedings including jurisdiction

 2   over guardian...
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 1   petitions and applications, demands for notices or bonds, trust registrations, and of any orders

 2   or respon...
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1    where jury trial has been had as a matter of right, the rules applicable to the scope of review

2    in jury ca...
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 1                  (2)    by delivering a copy of the notice to the person being notified

 2          personally at...
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1           (1)     Interests to be affected must be described in pleadings that give

2    reasonable information to...
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1                           (D)      An order binding a personal representative binds

2                   persons in...
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1           (5)     At any point in a proceeding, a court may appoint a guardian ad litem

2    to represent the inte...
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1                    (i)    no descendant or parent of the decedent survives the

2           decedent; or


3       ...
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1           (3)     if there is no surviving descendant or parent, to the descendants

2    of the decedent's parents...
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 1                  (1)    one deceased spouse who has one or more descendants who survive

 2          the decedent,...
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 1   §2-106. Representation.

2           (a)     Definitions. In this section:

 3                  (1)     "Decease...
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 1   generation nearest the deceased parents or either of them, or the deceased grandparents or

 2   either of them,...
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 1          (c)      If the recipient of the property fails to survive the decedent, the property is not

 2   taken ...
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1            the parent could have been terminated under other Virgin Islands law on the basis of

2            nons...
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 1   paternity under [insert applicable state law], the term means only the man for whom that

 2   relationship is ...
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 1                  (1)    an individual who is in the process of being adopted by a married

 2          couple whe...
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1                     (2)    the other genetic parent, but only for the purpose of the right of the

2           ado...
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 1                  (1)    “Birth mother” means a woman, other than a gestational carrier under

 2          section...
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 1   assisted reproduction and the husband of the child’s birth mother if the husband provided the

 2   sperm that ...
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1                           (C)     intended to be treated as a parent of a posthumously conceived

2               ...
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 1          (j)     Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos. If,

 2   in a record, an ind...
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1                     (4)     “Intended parent” means an individual who entered into a gestational

 2            ag...
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1                            (A)    there were two intended parents and the other intended parent

2                ...
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 1                   (2)     other facts and circumstances establishing the individual’s intent by

 2           cle...
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 1                   (2)    born not later than 45 months after the individual’s death.

 2           (i)     No Eff...
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 1          (5)     "Power" or "power of appointment" includes a power to designate the

 2   beneficiary of a benefi...
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 1   stated in this part, to take an elective-share amount equal to 50 percent of the value of the

 2   marital-prop...
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 1   § 2-204. Decedent's Net Probate Estate.

 2          The value of the augmented estate includes the value of the...
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 1          the decedent's ownership interest passed at the decedent's death to or for the

 2          benefit of an...
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 1          of the decedent's estate. The amount included with respect to a power over

 2          property is the v...
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 1                 this subparagraph, "termination," with respect to a right or interest in property,

 2            ...
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1           (1)     Property owned or owned in substance by the decedent immediately

2    before death that passed o...
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 1          of the proceeds, to the extent they were payable at the decedent's death to or

 2          for the benef...
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 1          If the power is a power over both income and property and the preceding

 2          sentence produces di...
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 1                  estate under paragraph (1) (iv) had the transfer not occurred. The amount

 2                  in...
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 1          (3)     all other property that would have been included in the augmented estate

 2   under section 2-20...
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 1   for purposes of subsection (a) (1) (i) and (ii), the values of the spouse's fractional and

 2   ownership inter...
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 1   or 2-207, the property is included in the augmented estate under the provision yielding the

 2   greatest value...
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 1   the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied

 2   balance of...
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Bill No. 28-0087 Uniform Probate Code

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Sponsors: Louis P. Hill
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Subject: Uniform Probate Code; Probate & Uniform Law Updates: Draft a measure to enact the Uniform Probate Code as drafted by the National Conference of Commissioners on Uniform State Laws, amending all relevant sections of the Virgin Islands Code Title 15 and all other sections of the code in order to revise and improve probate court procedures, processing, forms, court filings, and all matters related to probate

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Transcript of "Bill No. 28-0087 Uniform Probate Code"

  1. 1. COMMITTEE ON RULES AND JUDICIARY BILL NO. 28-0087 Twenty-Eighth Legislature of the Virgin Islands July 6, 2009 An Act amending title 15 of the Virgin Islands Code relating to affairs of decedents, and relating to the affairs of fiduciaries, enacting the Virgin Islands Uniform Probate Code; consolidating and revising aspects of the law relating to wills and intestacy and the administration and distribution of estates of decedents, the powers and procedures of the Court concerned with the affairs of decedents and certain others; providing for the validity and effect of certain non-testamentary transfers, contracts and deposits which relate to death and appear to have testamentary effect; providing certain procedures to facilitate enforcement of testamentary and other trusts; making uniform the law with respect to decedents and certain others; and repealing inconsistent law PROPOSED BY: Senator Louis Patrick Hill 1 Be it enacted by the Legislature of the Virgin Islands: 2 SECTION 1. Title 15 Virgin Islands Code chapters 1 through 56; chapters 58, 59 3 and 63 are repealed and reenacted with amendments that read as follows: 4 “TITILE 15 VIRGIN Islands UNIFORM PROBATE AND FIDUCIRY 5 RELATIONS CODE 6 PART 1 7 SHORT TITLE, CONSTRUCTION, GENERAL PROVISIONS 8 §1-101. Short Title. 9 This title may be cited as the Virgin Islands Uniform Probate Code and Fiduciary Relations.
  2. 2. 2 1 § 1-102. Purposes; Rule of Construction. 2 (a) This title must be liberally construed and applied to promote its underlying 3 purposes and policies. 4 (b) The underlying purposes and policies of this title are: 5 (1) to simplify and clarify the law concerning the affairs of 6 decedents, missing persons, protected persons, minors and incapacitated 7 persons; 8 (2) to discover and make effective the intent of a decedent in 9 distribution of his property; 10 (3) to promote a speedy and efficient system for liquidating the 11 estate of the decedent and making distribution to his successors; 12 (4) to facilitate use and enforcement of certain trusts; and 13 (5) to make uniform the law among the various jurisdictions. 14 §1-103. Supplementary General Principles of Law Applicable. 15 Unless displaced by the particular provisions of this title, the principles of law and 16 equity supplement its provisions. 17 §1-104. Severability. 18 If any provision of this title or the application this title to any person or circumstances 19 is held invalid, the invalidity does not affect other provisions or applications of the title 20 which can be given effect without the invalid provision or application, and to this end the 21 provisions of this Code are declared to be severable.
  3. 3. 3 1 §1-105. Construction Against Implied Repeal. 2 This title is intended as a unified coverage of its subject matter and no part of it may 3 be deemed impliedly repealed by subsequent legislation if it can reasonably be avoided. 4 §1-106. Effect of Fraud and Evasion. 5 Whenever fraud has been perpetrated in connection with any proceeding or in any 6 statement filed under this title or if fraud is used to avoid or circumvent the provisions or 7 purposes of this title, any person injured thereby may obtain appropriate relief against the 8 perpetrator of the fraud or restitution from any person, other than a bona fide purchaser, 9 benefitting from the fraud, whether innocent or not. Any proceeding must be commenced 10 within 2 years after the discovery of the fraud, but no proceeding may be brought against one 11 not a perpetrator of the fraud later than 5 years after the time of commission of the fraud. 12 This section has no bearing on remedies relating to fraud practiced on a decedent during his 13 lifetime which affects the succession of his estate. 14 § 1-107. Evidence of Death or Status. 15 In addition to the rules of evidence in courts of general jurisdiction, the following 16 rules relating to a determination of death and status apply: 17 (1) Death occurs when an individual is determined to be dead 18 under the Uniform Determination of Death Act, 19 V.I.C. §869. 19 (2) A certified or authenticated copy of a death certificate 20 purporting to be issued by an official or agency of the place where the death 21 purportedly occurred is prima facie evidence of the fact, place, date, and time of death 22 and the identity of the decedent.
  4. 4. 4 1 (3) A certified or authenticated copy of any record or report of a 2 governmental agency, domestic or foreign, that an individual is missing, detained, 3 dead, or alive is prima facie evidence of the status and of the dates, circumstances, 4 and places disclosed by the record or report. 5 (4) In the absence of prima facie evidence of death under 6 paragraph (2) or (3), the fact of death may be established by clear and convincing 7 evidence, including circumstantial evidence. 8 (5) An individual whose death is not established under the 9 preceding paragraphs who is absent for a continuous period of five years, during 10 which the individual has not been heard from, and whose absence is not 11 satisfactorily explained after diligent search or inquiry, is presumed to be dead. The 12 individual’s death is presumed to have occurred at the end of the period unless there 13 is sufficient evidence for determining that death occurred earlier. 14 (6) In the absence of evidence disputing the time of death stated on 15 a document described in paragraph (2) or (3), a document described in paragraph (2) 16 or (3) that states a time of death 120 hours or more after the time of death of another 17 individual, however the time of death of the other individual is determined, 18 establishes by clear and convincing evidence that the individual survived the other 19 individual by 120 hours. 20 §1-108. Acts by Holder of General Power. 21 For the purpose of granting consent or approval with regard to the acts or accounts of 22 a personal representative or trustee, including relief from liability or penalty for failure to 23 post bond, to register a trust, or to perform other duties, and for purposes of consenting to
  5. 5. 5 1 modification or termination of a trust or to deviation from its terms, the sole holder or all co 2 holders of a presently exercisable general power of appointment, including one in the form of 3 a power of amendment or revocation, are deemed to act for beneficiaries to the extent their 4 interests, as objects, takers in default, or otherwise, are subject to the power. 5 §1-109. COST OF LIVING ADJUSTMENT OF CERTAIN DOLLAR 6 AMOUNTS. 7 (a) In this section: 8 (1) “CPI” means the Consumer Price Index (Annual Average) for All 9 Urban Consumers (CPI-U): U.S. City Average — All items, reported by the Bureau 10 of Labor Statistics, United States Department of Labor or its successor or, if the index 11 is discontinued, an equivalent index reported by a federal authority. If no such index 12 is reported, the term means the substitute index chosen by Bureau of Audit Control 13 and 14 (2) “Reference base index” means the CPI for calendar year2009 15 (b) The dollar amounts stated in sections 2-102, 2-202(b), 2-402, 2-403, and 2- 16 405 apply to the estate of a decedent who died in or after 2009, but for the estate of a 17 decedent who died after 2009 these dollar amounts must be increased or decreased if the CPI 18 for the calendar year immediately preceding the year of death exceeds or is less than the 19 reference base index. The amount of any increase or decrease is computed by multiplying 20 each dollar amount by the percentage by which the CPI for the calendar year immediately 21 preceding the year of death exceeds or is less than the reference base index. If any increase 22 or decrease produced by the computation is not a multiple of $100, the increase or decrease is 23 rounded down, if an increase, or up, if a decrease, to the next multiple of $100, but for the
  6. 6. 6 1 purpose of Section 2-405, the periodic installment amount is the lump-sum amount divided 2 by 12. If the CPI January 1, 2010 is changed by the Bureau of Labor Statistics, the reference 3 base index must be revised using the rebasing factor reported by the Bureau of Labor 4 Statistics, or other comparable data if a rebasing factor is not reported. 5 PART 2 6 DEFINITIONS 7 §1-201. General Definitions. 8 Subject to additional definitions contained in the subsequent articles which are 9 applicable to specific articles, parts, or sections, and unless the context otherwise requires, in 10 this title: 11 (1) "Agent" includes an attorney-in-fact under a durable or nondurable 12 power of attorney, an individual authorized to make decisions concerning another's 13 health care, and an individual authorized to make decisions for another under a 14 natural death act. 15 (2) "Application" means a written request to the Registrar for an order of 16 informal probate or appointment under Part 3 of Article III. 17 (3) "Beneficiary," as it relates to a trust beneficiary, includes a 18 person who has any present or future interest, vested or contingent, 19 and also includes the owner of an interest by assignment or other 20 transfer; as it relates to a charitable trust, includes any person entitled 21 to enforce the trust; as it relates to a "beneficiary of a beneficiary 22 designation," refers to a beneficiary of an insurance or annuity policy, 23 of an account with POD designation, of a security registered in 24 beneficiary form (TOD), or of a pension, profit sharing, retirement, or
  7. 7. 7 1 similar benefit plan, or other nonprobate transfer at death; and, as it 2 relates to a "beneficiary designated in a governing instrument”, 3 includes a grantee of a deed, a devisee, a trust beneficiary, a 4 beneficiary of a beneficiary designation, a donee, appointee, or taker in 5 default of a power of appointment, or a person in whose favor a power 6 of attorney or a power held in any individual, fiduciary, or 7 representative capacity is exercised. 8 (4) "Beneficiary designation" refers to a governing instrument naming a 9 beneficiary of an insurance or annuity policy, of an account with POD designation, of 10 a security registered in beneficiary form (TOD), or of a pension, profit-sharing, 11 retirement, or similar benefit plan, or other nonprobate transfer at death. 12 (5) "Child" includes an individual entitled to take as a child under this title 13 by intestate succession from the parent whose relationship is involved and excludes a 14 person who is only a stepchild, a foster child, a grandchild, or any more remote 15 descendant. 16 (6) "Claims," in respect to estates of decedents and protected persons, 17 includes liabilities of the decedent or protected person, whether arising in contract, in 18 tort, or otherwise, and liabilities of the estate which arise at or after the death of the 19 decedent or after the appointment of a conservator, including funeral expenses and 20 expenses of administration. The term does not include estate or inheritance taxes, or 21 demands or disputes regarding title of a decedent or protected person to specific 22 assets alleged to be included in the estate. 23 (7) “Conservator” means as defined in section 5-102.
  8. 8. 8 1 (8) "Court" means the Superior Court of the Virgin Islands or DIVISION 2 of the Superior Court having jurisdiction in matters relating to the affairs of 3 decedents. 4 (9) "Descendant" of an individual means all of the individual’s 5 descendants of all generations, with the relationship of parent and child at each 6 generation being determined by the definition of child and parent contained in this 7 Code. 8 (10) "Devise," when used as a noun, means a testamentary disposition of 9 real or personal property and, when used as a verb, means to dispose of real or 10 personal property by will. 11 (11) "Devisee" means a person designated in a will to receive a devise. For 12 the purposes of Article III, in the case of a devise to an existing trust or trustee, or to a 13 trustee on trust described by will, the trust or trustee is the devisee and the 14 beneficiaries are not devisees. 15 (12) "Distributee" means 16 (A) any person who has received property of a decedent from the 17 decedent’s personal representative other than as a creditor or purchaser: 18 (B) a testamentary trustee, including a trustee to whom assets are 19 transferred by will, only to the extent of distributed assets or increment thereto 20 remaining in the trustee’s hands; 21 (C) a beneficiary of a testamentary trust to whom the trustee has 22 distributed property received from a personal representative.
  9. 9. 9 1 (13) "Estate" includes the property of the decedent, trust, or other person 2 whose affairs are subject to this Code as originally constituted and as it exists from 3 time to time during administration. 4 (14) "Exempt property" means that property of a decedent's estate which is 5 described in section 2-403. 6 (15) "Fiduciary" includes a personal representative, guardian, conservator, 7 and trustee. 8 (16) "Foreign personal representative" means a personal representative 9 appointed by another jurisdiction. 10 (17) "Formal proceedings" means proceedings conducted before a judge 11 with notice to interested persons. 12 (18) "Governing instrument" means a deed, will, trust, insurance or annuity 13 policy, account with POD designation, security registered in beneficiary form (TOD), 14 pension, profit sharing, retirement, or similar benefit plan, instrument creating or 15 exercising a power of appointment or a power of attorney, or a dispositive, 16 appointive, or nominative instrument of any similar type. 17 (19) "Guardian" is as defined in section 5-102. 18 (20) "Heirs," except as controlled by section 2-711, means persons, 19 including the surviving spouse and the state, who are entitled under the statutes of 20 intestate succession to the property of a decedent. 21 (21) "Incapacitated person" means an individual described in section 5-102. 22 (22) "Informal proceedings" means those conducted without notice to 23 interested persons by an officer of the court acting as a registrar for probate of a will 24 or appointment of a personal representative.
  10. 10. 10 1 (23) "Interested person" , according to the particular purpose of or matter 2 involved in a proceeding, includes heirs, devisees, children, spouses, creditors, 3 beneficiaries, others having a property right in or claim against a trust estate or the 4 estate of a decedent, ward, or protected person, persons having priority for 5 appointment as personal representative, and other fiduciaries representing interested 6 persons. The meaning as it relates to particular persons may vary from time to time 7 and must be determined according to the particular purposes of, and matter involved 8 in, any proceeding. 9 (24) "Issue" of an individual means descendant. 10 (25) "Joint tenants with the right of survivorship" and "community property 11 with the right of survivorship" includes co-owners of property held under 12 circumstances that entitle one or more to the whole of the property on the death of the 13 other or others, but excludes forms of co-ownership registration in which the 14 underlying ownership of each party is in proportion to that party's contribution. 15 (26) "Lease" includes oil, gas, or other mineral lease. 16 (27) "Letters" includes letters testamentary, letters of guardianship, letters 17 of administration, and letters of conservatorship. 18 (28) "Minor" has the meaning described in section 5-102. 19 (29) "Mortgage" means any conveyance, agreement, or arrangement in 20 which property is encumbered or used as security. 21 (30) "Nonresident decedent" means a decedent who was domiciled in 22 another jurisdiction at the time of the decedent’s death.
  11. 11. 11 1 (31) "Organization" means a corporation, business trust, estate, trust, 2 partnership, joint venture, association, government or governmental subdivision or 3 agency, or any other legal or commercial entity. 4 (32) "Parent" includes any person entitled to take, or who would be entitled 5 to take if the child died without a will, as a parent under this Code by intestate 6 succession from the child whose relationship is in question and excludes any person 7 who is only a stepparent, foster parent, or grandparent. 8 (33) "Payor" means a trustee, insurer, business entity, employer, 9 government, governmental agency or subdivision, or any other person authorized or 10 obligated by law or a governing instrument to make payments. 11 (34) "Person" means an individual or an organization. 12 (35) "Personal representative" includes executor administrator, successor 13 personal representative, special administrator, and persons who perform substantially 14 the same function under the law governing their status. "General personal 15 representative" excludes special administrator. 16 (36) "Petition" means a written request to the Court for an order after 17 notice. 18 (37) "Proceeding" includes action at law and suit in equity. 19 (38) "Property" includes both real and personal property or any interest 20 therein and means anything that may be the subject of ownership. 21 (39) "Protected person" is as defined in Section 5-102. 22 (40) "Protective proceeding" means a proceeding under Part 4 of Article V. 23 (41) “Record” means information that is inscribed on a tangible medium or 24 that is stored in an electronic or other medium and is retrievable in perceivable form.
  12. 12. 12 1 (42) "Registrar" means the official of the court designated to perform the 2 functions of Registrar as provided in section 1-307. 3 (43) "Security" includes any note, stock, treasury stock, bond, debenture, 4 evidence of indebtedness, certificate of interest or participation in an oil, gas, or 5 mining title or lease or in payments out of production under such a title or lease, 6 collateral trust certificate, transferable share, voting trust certificate or, in general, any 7 interest or instrument commonly known as a security, or any certificate of interest or 8 participation, any temporary or interim certificate, receipt, or certificate of deposit 9 for, or any warrant or right to subscribe to or purchase, any of the foregoing. 10 (44) "Settlement," in reference to a decedent's estate, includes the full 11 process of administration, distribution, and closing. 12 (45) “Sign” means, with present intent to authenticate or adopt a record 13 other than a will: 14 (A) to execute or adopt a tangible symbol; or 15 (B) to attach to or logically associate with the record an electronic symbol, 16 sound, or process. 17 (46) “Special administrator” means a personal representative as described 18 by sections 3-614 through 3-618. 19 (47) "State" means a state of the United States, the District of Columbia, 20 and the Commonwealth of Puerto Rico, the Virgin Islands or any territory or insular 21 possession subject to the jurisdiction of the United States. 22 (48) "Successor personal representative" means a personal representative, 23 other than a special administrator, who is appointed to succeed a previously appointed 24 personal representative.
  13. 13. 13 1 (49) "Successors" mean persons, other than creditors, who are entitled to 2 property of a decedent under the decedent’s will or this title. 3 (50) "Supervised administration" refers to the proceedings described in 4 Article III, Part 5. 5 (51) "Survive" means that an individual has neither predeceased an event, 6 including the death of another individual, nor is deemed to have predeceased an event 7 under section 2-104 or 2-702. The term includes its derivatives, such as "survives," 8 "survived," "survivor," "surviving." 9 (52) "Testacy proceeding" means a proceeding to establish a will or 10 determine intestacy. 11 (53) "Testator" includes an individual of either sex. 12 (54) "Trust" includes an express trust, private or charitable, with additions 13 thereto, wherever and however created. The term also includes a trust created or 14 determined by judgment or decree under which the trust is to be administered in the 15 manner of an express trust. The term excludes other constructive trusts and excludes 16 resulting trusts, conservatorships, personal representatives, trust accounts as defined 17 in Article VI, custodial arrangements pursuant the Uniform Transfer to minors Act in 18 chapter 62 of this title, business trusts providing for certificates to be issued to 19 beneficiaries, common trust funds, voting trusts, security arrangements, liquidation 20 trusts, and trusts for the primary purpose of paying debts, dividends, interest, salaries, 21 wages, profits, pensions, or employee benefits of any kind, and any arrangement 22 under which a person is nominee or escrowee for another. 23 (55) "Trustee" includes an original, additional, or successor trustee, 24 whether or not appointed or confirmed by court.
  14. 14. 14 1 (56) "Ward" means an individual described in section 5-102. 2 (57) "Will" includes codicil and any testamentary instrument that merely 3 appoints an executor, revokes or revises another will, nominates a guardian, or 4 expressly excludes or limits the right of an individual or class to succeed to property 5 of the decedent passing by intestate succession. 6 PART 3 7 SCOPE, JURISDICTION AND COURTS 8 §1-301. Territorial Application. 9 Except as otherwise provided in this title, this title applies to (1) the affairs and estates 10 of decedents, missing persons, and persons to be protected, domiciled in the Virgin Islands, 11 (2) the property of nonresidents located in the Virgin Islands or property coming into the 12 control of a fiduciary who is subject to the laws of the Virgin Islands, (3) incapacitated 13 persons and minors in the Virgin Islands , (4) survivorship and related accounts in the Virgin 14 islands, and (5) trusts subject to administration in the Virgin Islands. 15 § 1-302. Subject Matter Jurisdiction. 16 (a) To the full extent permitted by the Constitution and except as otherwise 17 provided by law, the court has jurisdiction over all subject matter relating to: 18 (1) Estates of decedents, including construction of wills and determination 19 of heirs and successors of decedents, and estates of protected persons; 20 (2) Protection of minors and incapacitated persons; and 21 (3) Trusts. 22 (b) The Court has full power to make orders, judgments and decrees and take all 23 other action necessary and proper to administer justice in the matters that come before it.
  15. 15. 15 1 (c) The Court has jurisdiction over protective proceedings including jurisdiction 2 over guardianship proceedings. 3 (d) Where protective and guardianship proceedings relating to the same person 4 have been initiated, they may be consolidated in any division of the Court as the Court in its 5 discretion determines. 6 § 1-303. Venue; Multiple Proceedings; Transfer. 7 (a) Where a proceeding under this Code could be maintained in more than one 8 place in the Territory, the court in which the proceeding is first commenced has the exclusive 9 right to proceed. 10 (b) If proceedings concerning the same estate, protected person, ward, or trust are 11 commenced in more than one court of the Virgin Islands, the court in which the proceeding 12 was first commenced shall continue to hear the matter, and the other courts shall hold the 13 matter in abeyance until the question of venue is decided, and if the ruling court determines 14 that venue is properly in another court, it shall transfer the proceeding to the other court. 15 (c) If a Court finds that in the interest of justice a proceeding or a file should be 16 located in another Court of the Virgin Islands, the Court making the finding may transfer the 17 proceeding or file to the other Court. 18 § 1-304. Practice in Court. 19 Unless specifically provided to the contrary in this Code or unless inconsistent with 20 its provisions, the rules of civil procedure including the rules concerning vacation of orders 21 and appellate review govern formal proceedings under this Code. 22 § 1-305. Records and Certified Copies. 23 The Clerk of Court shall keep a record for each decedent, ward, protected person or 24 trust involved in any document that may be filed with the court under this title, including
  16. 16. 16 1 petitions and applications, demands for notices or bonds, trust registrations, and of any orders 2 or responses relating thereto by the Registrar or court, and establish and maintain a system 3 for indexing, filing or recording which is sufficient to enable users of the records to obtain 4 adequate information. Upon payment of the fees required by law the clerk shall issue 5 certified copies of any probated wills, letters issued to personal representatives, or any other 6 record or paper filed or recorded. Certificates relating to probated wills must indicate 7 whether the decedent was domiciled in the Virgin Islands, and whether the probate was 8 formal or informal. Certificates relating to letters must show the date of appointment. 9 § 1-306. Jury Trial. 10 (a) If duly demanded, a party is entitled to trial by jury in a formal testacy 11 proceeding and any proceeding in which any controverted question of fact arises as to which 12 any party has a constitutional right to trial by jury. 13 (b) If there is no right to trial by jury under subsection (a) or the right is waived, 14 the court in its discretion may call a jury to decide any issue of fact, in which case the verdict 15 is advisory only. 16 § 1-307. Registrar; Powers. 17 The acts and orders that this Code specifies as performable by the Registrar may be 18 performed either by a judge of the Court or by a person, including the clerk, designated by 19 the Court by a written order filed and recorded in the office of the Court. 20 §1-308. Appeals. 21 Appellate review, including the right to appellate review, interlocutory appeal, 22 provisions as to time, manner, notice, appeal bond, stays, scope of review, record on appeal, 23 briefs, arguments and power of the appellate court, is governed by the rules applicable to the 24 appeals to the Supreme Court of the Virgin Islands in equity cases; except that in proceedings
  17. 17. 17 1 where jury trial has been had as a matter of right, the rules applicable to the scope of review 2 in jury cases apply. 3 §1-309. RESERVED 4 §1-310. Oath or Affirmation on Filed Documents. 5 Except as otherwise specifically provided in this Code or by rule, every document 6 filed with the Court under this Code including applications, petitions, and demands for 7 notice, is deemed to include an oath, affirmation, or statement to the effect that its 8 representations are true as far as the person executing or filing it knows or is informed, and 9 penalties for perjury may follow deliberate falsification therein. 10 PART 4 11 NOTICE, PARTIES AND REPRESENTATION IN ESTATE LITIGATION AND 12 OTHER MATTERS 13 §1-401. Notice; Method and Time of Giving. 14 (a) If notice of a hearing on any petition is required and except for specific notice 15 requirements as otherwise provided, the petitioner shall cause notice of the time and place of 16 hearing of any petition to be given to any interested person or his attorney if he has appeared 17 by attorney or requested that notice be sent to his attorney. Notice must be given: 18 (1) by mailing a copy the notice at least 14 days before the time set 19 for the hearing by certified, registered or ordinary first class mail addressed to 20 the person being notified at the post office address given in the person’s 21 demand for notice, if any, or at the person’s office or place of residence, if 22 known;
  18. 18. 18 1 (2) by delivering a copy of the notice to the person being notified 2 personally at least 14 days before the time set for the hearing; or 3 (3) if the address, or identity of any person is not known and 4 cannot be ascertained with reasonable diligence, by publishing at least once a 5 week for three consecutive weeks, a copy of the notice in a newspaper having 6 general circulation on the island where the hearing is to be held, the last 7 publication of which is to be at least 10 days before the time set for the 8 hearing. 9 (b) The Court for good cause shown may provide for a different method or time 10 of giving notice for any hearing. 11 (c) Proof of the giving of notice must be made on or before the hearing and filed 12 in the proceeding. 13 Section 1-402. Notice; Waiver. 14 A person, including a guardian an item, conservator, or other fiduciary, may waive 15 notice by a writing signed by him or his attorney and filed in the proceeding. A person for 16 whom a guardianship or other protective order is sought, a ward, or a protected person may 17 not waive notice. 18 §1-403. Pleadings; When Parties Bound by Others; Notice. 19 In formal proceedings involving trusts or estates of decedents, minors, protected 20 persons, or incapacitated persons, and in judicially supervised settlements, the following 21 rules apply:
  19. 19. 19 1 (1) Interests to be affected must be described in pleadings that give 2 reasonable information to owners by name or class, by reference to the instrument 3 creating the interests or in another appropriate manner. 4 (2) A person is bound by an order binding another in the following cases: 5 (i) An order binding the sole holder or all co-holders of a 6 power of revocation or a presently exercisable general power of 7 appointment, including one in the form of a power of amendment, 8 binds other persons to the extent their interests as objects, takers in 9 default or otherwise are subject to the power. 10 (ii) To the extent there is no conflict of interest between 11 them or among persons represented: 12 (A) An order binding a conservator binds the person 13 whose estate the conservator controls; 14 (B) An order binding a guardian binds the ward if 15 no conservator of the ward’s estate has been appointed; 16 (C) An order binding a trustee binds beneficiaries of 17 the trust in proceedings to probate a will establishing or adding 18 to a trust, to review the acts or accounts of a former fiduciary, 19 and in proceedings involving creditors or other third parties; 20
  20. 20. 20 1 (D) An order binding a personal representative binds 2 persons interested in the undistributed assets of a decedent’s 3 estate in actions or proceedings by or against the estate; and 4 (E) An order binding a sole holder or all co-holders 5 of a general testamentary power of appointment binds other 6 persons to the extent their interests as objects, takers in default 7 or otherwise are subject to the power. 8 (iii) Unless otherwise represented, a minor or an 9 incapacitated, unborn, or unascertained person is bound by an order to 10 the extent the person’s interest is adequately represented by another 11 party having a substantially identical interest in the proceeding. 12 (3) If no conservator or guardian has been appointed, a parent may 13 represent a minor child. 14 (4) Notice is required as follows: 15 (i) The notice prescribed by section 1-401 must be given to 16 every interested person or to one who can bind an interested person as 17 described in paragraph (2)(i) or (ii). Notice may be given both to a 18 person and to another who may bind the person. 19 (ii) Notice is given to unborn or unascertained persons, 20 who are not represented under paragraph (2) (i) or (ii), by giving 21 notice to all known persons whose interests in the proceedings are 22 substantially identical to those of the unborn or unascertained persons.
  21. 21. 21 1 (5) At any point in a proceeding, a court may appoint a guardian ad litem 2 to represent the interest of a minor, an incapacitated, unborn, or unascertained person, 3 or a person whose identity or address is unknown, if the court determines that 4 representation of the interest otherwise would be inadequate. If not precluded by 5 conflict of interests, a guardian ad litem may be appointed to represent several 6 persons or interests. The court shall state its reasons for appointing a guardian ad 7 litem as a part of the record of the proceeding. 8 ARTICLE II 9 PART 1 10 INTESTATE SUCCESSION 11 §2-101. Intestate Estate. 12 (a) Any part of a decedent's estate not effectively disposed of by will passes by 13 intestate succession to the decedent's heirs as prescribed in this Code, except as modified by 14 the decedent's will. 15 (b) A decedent by will may expressly exclude or limit the right of an individual or 16 class to succeed to property of the decedent passing by intestate succession. If that individual 17 or a member of that class survives the decedent, the share of the decedent's intestate estate to 18 which that individual or class would have succeeded passes as if that individual or each 19 member of that class had disclaimed his intestate share. 20 §2-102. Share of Spouse. 21 The intestate share of a decedent's surviving spouse is: 22 (1) the entire intestate estate if:
  22. 22. 22 1 (i) no descendant or parent of the decedent survives the 2 decedent; or 3 (ii) all of the decedent's surviving descendants are also 4 descendants of the surviving spouse and there is no other descendant 5 of the surviving spouse who survives the decedent; 6 (2) the first $300,000, plus three fourths of any balance of the intestate estate, if 7 no descendant of the decedent survives the decedent, but a parent of the decedent survives 8 the decedent; 9 (3) the first $225,000, plus one-half of any balance of the intestate estate, if all of 10 the decedent's surviving descendants are also descendants of the surviving spouse and the 11 surviving spouse has one or more surviving descendants who are not descendants of the 12 decedent; 13 (4) the first $150,000, plus one-half of any balance of the intestate estate, if one 14 or more of the decedent's surviving descendants are not descendants of the surviving spouse. 15 Section 2-103. Share of Heirs other than Surviving Spouse. 16 (a) Any part of the intestate estate not passing to the decedent's surviving spouse 17 under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the 18 following order to the individuals designated below who survive the decedent: 19 (1) to the decedent's descendants by representation; 20 (2) if there is no surviving descendant, to the decedent's parents 21 equally if both survive, or to the surviving parent if only one survives;
  23. 23. 23 1 (3) if there is no surviving descendant or parent, to the descendants 2 of the decedent's parents or either of them by representation; 3 (4) if there is no surviving descendant, parent, or descendant of a 4 parent, but the decedent is survived on both the paternal and maternal sides by 5 one or more grandparents or descendants of grandparents: 6 (A) half to the decedent's paternal grandparents equally if 7 both survive, to the surviving paternal grandparent if only one 8 survives, or to the descendants of the decedent's paternal grandparents 9 or either of them if both are deceased, the descendants taking by 10 representation; and 11 (B) to the decedent's maternal grandparents equally if both 12 survive, to the surviving maternal grandparent if only one survives, or 13 to the descendants of the decedent’s maternal grandparents or either of 14 them if both are deceased, the descendants taking by representation; 15 (5) if there is no surviving descendant, parent, or descendant of a 16 parent, but the decedent is survived by one or more grandparents or 17 descendants of grandparents on the paternal but not the maternal side, or on 18 the maternal but not the paternal side, to the decedent’s relatives on the side 19 with one or more surviving members in the manner described in paragraph 20 (4). 21 (b) If there is no taker under subsection (a), but the decedent has:
  24. 24. 24 1 (1) one deceased spouse who has one or more descendants who survive 2 the decedent, the estate or part the estate passes to that spouse’s descendants by 3 representation; or 4 (2) more than one deceased spouse who has one or more descendants who 5 survive the decedent, an equal share of the estate or part thereof passes to each set of 6 descendants by representation. 7 § 2-104. Requirement of Survival by 120 Hours; Individual in Gestation. 8 (b) For purposes of intestate succession, homestead allowance, and exempt 9 property, and except as otherwise provided in subsection (b), the following rules apply: 10 (1) An individual born before a decedent’s death who fails to survive the 11 decedent by 120 hours is deemed to have predeceased the decedent. If it is not 12 established by clear and convincing evidence that an individual born before the 13 decedent’s death survived the decedent by 120 hours, it is deemed that the individual 14 failed to survive for the required period. 15 (2) An individual in gestation at a decedent’s death is deemed to be living 16 at the decedent’s death if the individual lives 120 hours after birth. If it is not 17 established by clear and convincing evidence that an individual in gestation at the 18 decedent’s death lived 120 hours after birth, it is deemed that the individual failed to 19 survive for the required period. 20 (b) This section does not apply if its application would cause the estate to pass to 21 the state under section 2-105. 22 §2-105. No Taker. 23 If there is no taker under the provisions of this Article, the intestate estate passes to 24 the Government of the Virgin Islands.
  25. 25. 25 1 §2-106. Representation. 2 (a) Definitions. In this section: 3 (1) "Deceased descendant," "deceased parent," or "deceased 4 grandparent" means a descendant, parent, or grandparent who either 5 predeceased the decedent or is deemed to have predeceased the decedent 6 under section 2-104. 7 (2) "Surviving descendant" means a descendant who neither 8 predeceased the decedent nor is deemed to have predeceased the decedent 9 under section 2-104. 10 (b) Decedent's Descendants. If, under section 2-103 (a) (1), a decedent's 11 intestate estate or a part the estate passes "by representation" to the decedent's descendants, 12 the estate or part of the estate is divided into as many equal shares as there are (i) surviving 13 descendants in the generation nearest to the decedent which contains one or more surviving 14 descendants and (ii) deceased descendants in the same generation who left surviving 15 descendants, if any. Each surviving descendant in the nearest generation is allocated one 16 share. The remaining shares, if any, are combined and then divided in the same manner 17 among the surviving descendants of the deceased descendants as if the surviving descendants 18 who were allocated a share and their surviving descendants had predeceased the decedent. 19 (c) Descendants of Parents or Grandparents. If, under section 2-103 (a) (3) or 20 (4), a decedent's intestate estate or a part the estate passes "by representation" to the 21 descendants of the decedent's deceased parents or either of them or to the descendants of the 22 decedent's deceased paternal or maternal grandparents or either of them, the estate or part the 23 estate is divided into as many equal shares as there are (i) surviving descendants in the
  26. 26. 26 1 generation nearest the deceased parents or either of them, or the deceased grandparents or 2 either of them, that contains one or more surviving descendants and (ii) deceased 3 descendants in the same generation who left surviving descendants, if any. Each surviving 4 descendant in the nearest generation is allocated one share. The remaining shares, if any, are 5 combined and then divided in the same manner among the surviving descendants of the 6 deceased descendants as if the surviving descendants who were allocated a share and their 7 surviving descendants had predeceased the decedent. 8 § 2-107. Kindred of Half Blood. 9 Relatives of the half blood inherit the same share they would inherit if they were of the whole 10 blood. 11 § 2-108. RESERVED 12 § 2-109. Advancements. 13 (a) If an individual dies intestate as to all or a portion of the decedent’s 14 estate, property the decedent gave during the decedent's lifetime to an individual who, at the 15 decedent's death, is an heir is treated as an advancement against the heir's intestate share only 16 if (i) the decedent declared in a contemporaneous writing or the heir acknowledged in writing 17 that the gift is an advancement or (ii) the decedent's contemporaneous writing or the heir's 18 written acknowledgment otherwise indicates that the gift is to be taken into account in 19 computing the division and distribution of the decedent's intestate estate. 20 (b) For purposes of subsection (a), property advanced is valued as of the time the 21 heir came into possession or enjoyment of the property or as of the time of the decedent's 22 death, whichever first occurs.
  27. 27. 27 1 (c) If the recipient of the property fails to survive the decedent, the property is not 2 taken into account in computing the division and distribution of the decedent's intestate 3 estate, unless the decedent's contemporaneous writing provides otherwise. 4 § 2-110. Debts to Decedent. 5 A debt owed to a decedent is not charged against the intestate share of any individual 6 except the debtor. If the debtor fails to survive the decedent, the debt is not taken into 7 account in computing the intestate share of the debtor's descendants. 8 § 2-111. Alienage. 9 No individual is disqualified to take as an heir because the individual or an individual 10 through whom he claims is or has been an alien. 11 §2-112. Dower and Curtesy Abolished. 12 The estates of dower and curtesy are abolished. 13 § 2-113. Individuals Related to Decedent Through Two Lines. 14 An individual who is related to the decedent through two lines of relationship is 15 entitled to only a single share based on the relationship that would entitle the individual to the 16 larger share. 17 § 2-114. Parent Barred from Inheriting in Certain Circumstances 18 (a) A parent is barred from inheriting from or through a child of the parent if: 19 (1) the parent’s parental rights were terminated and the parent-child 20 relationship was not judicially reestablished; or 21 (2) the child died before reaching 18 years of age and there is clear and 22 convincing evidence that immediately before the child’s death the parental rights of
  28. 28. 28 1 the parent could have been terminated under other Virgin Islands law on the basis of 2 nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent 3 toward the child. 4 (b) For the purpose of intestate succession from or through the deceased child, a 5 parent who is barred from inheriting under this section is treated as if the parent predeceased 6 the child. 7 SUBPART 2. PARENT-CHILD RELATIONSHIP 8 §2-115. DEFINITIONS. In this subpart: 9 (1) “Adoptee” means an individual who is adopted. 10 (2) “Assisted reproduction” means a method of causing pregnancy other than 11 sexual intercourse. 12 (3) “Divorce” includes an annulment, dissolution, and declaration of invalidity of 13 a marriage. 14 (4) “Functioned as a parent of the child” means behaving toward a child in a 15 manner consistent with being the child’s parent and performing functions that are 16 customarily performed by a parent, including fulfilling parental responsibilities toward the 17 child, recognizing or holding out the child as the individual’s child, materially participating 18 in the child’s upbringing, and residing with the child in the same household as a regular 19 member of that household. 20 (5) “Genetic father” means the man whose sperm fertilized the egg of a child’s 21 genetic mother. If the father-child relationship is established under the presumption of
  29. 29. 29 1 paternity under [insert applicable state law], the term means only the man for whom that 2 relationship is established. 3 (6) “Genetic mother” means the woman whose egg was fertilized by the sperm of 4 a child’s genetic father. 5 (7) “Genetic parent” means a child’s genetic father or genetic mother. 6 (8) “Incapacity” means the inability of an individual to function as a parent of a 7 child because of the individual’s physical or mental condition. 8 (9) “Relative” means a grandparent or a descendant of a grandparent. 9 §2-116. EFFECT OF PARENT-CHILD RELATIONSHIP. Except as otherwise provided 10 in section 2-119(b) through (e), if a parent-child relationship exists or is established under 11 this subpart, the parent is a parent of the child and the child is a child of the parent for the 12 purpose of intestate succession. 13 §2-117. NO DISTINCTION BASED ON MARITAL STATUS. Except as otherwise 14 provided in sections 2-114, 2-119, 2-120, or 2-121, a parent-child relationship exists between 15 a child and the child’s genetic parents, regardless of the parents’ marital status. 16 §2-118. ADOPTEE AND ADOPTEE’S ADOPTIVE PARENT OR PARENTS. 17 (a) Parent-Child Relationship Between Adoptee and Adoptive Parent or 18 Parents. A parent-child relationship exists between an adoptee and the adoptee’s adoptive 19 parent or parents. 20 (b) Individual in Process of Being Adopted by Married Couple; Stepchild in 21 Process of Being Adopted by Stepparent. For purposes of subsection (a):
  30. 30. 30 1 (1) an individual who is in the process of being adopted by a married 2 couple when one of the spouses dies is treated as adopted by the deceased spouse if 3 the adoption is subsequently granted to the decedent’s surviving spouse; and 4 (2) a child of a genetic parent who is in the process of being adopted by a 5 genetic parent’s spouse when the spouse dies is treated as adopted by the deceased 6 spouse if the genetic parent survives the deceased spouse by 120 hours. 7 (c) Child of Assisted Reproduction or Gestational Child in Process of Being 8 Adopted. If, after a parent-child relationship is established between a child of assisted 9 reproduction and a parent under section 2-120 or between a gestational child and a parent 10 under section 2-121, the child is in the process of being adopted by the parent’s spouse when 11 that spouse dies, the child is treated as adopted by the deceased spouse for the purpose of 12 subsection (b) (2). 13 §2-119. ADOPTEE AND ADOPTEE’S GENETIC PARENTS. 14 (a) Parent-Child Relationship Between Adoptee and Genetic Parents. Except 15 as otherwise provided in subsections (b) through (e), a parent-child relationship does not 16 exist between an adoptee and the adoptee’s genetic parents. 17 (b) Stepchild Adopted by Stepparent. A parent-child relationship exists 18 between an individual who is adopted by the spouse of either genetic parent and: 19 (1) the genetic parent whose spouse adopted the individual; and
  31. 31. 31 1 (2) the other genetic parent, but only for the purpose of the right of the 2 adoptee or a descendant of the adoptee to inherit from or through the other genetic 3 parent. 4 (c) Individual Adopted by Relative of Genetic Parent. A parent-child 5 relationship exists between both genetic parents and an individual who is adopted by a 6 relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic 7 parent, but only for the purpose of the right of the adoptee or a descendant of the adoptee to 8 inherit from or through either genetic parent. 9 (d) Individual Adopted after Death of Both Genetic Parents. A parent-child 10 relationship exists between both genetic parents and an individual who is adopted after the 11 death of both genetic parents, but only for the purpose of the right of the adoptee or a 12 descendant of the adoptee to inherit through either genetic parent. 13 (e) Child of Assisted Reproduction or Gestational Child Who Is 14 Subsequently Adopted. If, after a parent-child relationship is established between a child of 15 assisted reproduction and a parent or parents under section 2-120 or between a gestational 16 child and a parent or parents under section 2-121, the child is adopted by another or others, 17 the child’s parent or parents under section 2-120 or 2-121 are treated as the child’s genetic 18 parent or parents for the purpose of this section. 19 §2-120. CHILD CONCEIVED BY ASSISTED REPRODUCTION OTHER THAN 20 CHILD BORN TO GESTATIONAL CARRIER. 21 (a) Definitions. In this section:
  32. 32. 32 1 (1) “Birth mother” means a woman, other than a gestational carrier under 2 section 2-121, who gives birth to a child of assisted reproduction. The term is not 3 limited to a woman who is the child’s genetic mother. 4 (2) “Child of assisted reproduction” means a child conceived by means of 5 assisted reproduction by a woman other than a gestational carrier under section 2-121. 6 (3) “Third-party donor” means an individual who produces eggs or sperm 7 used for assisted reproduction, whether or not for consideration. The term does not 8 include: 9 (A) a husband who provides sperm, or a wife who provides eggs, 10 that are used for assisted reproduction by the wife; 11 (B) the birth mother of a child of assisted reproduction; or 12 (C) an individual who has been determined under subsection (e) or 13 (f) to have a parent-child relationship with a child of assisted reproduction. 14 (b) Third-Party Donor. A parent-child relationship does not exist between a 15 child of assisted reproduction and a third-party donor. 16 (c) Parent-Child Relationship with Birth Mother. A parent-child relationship 17 exists between a child of assisted reproduction and the child’s birth mother. 18 (d) Parent-Child Relationship with Husband Whose Sperm Were Used 19 During His Lifetime by His Wife for Assisted Reproduction. Except as otherwise 20 provided in subsections (i) and (j), a parent-child relationship exists between a child of
  33. 33. 33 1 assisted reproduction and the husband of the child’s birth mother if the husband provided the 2 sperm that the birth mother used during his lifetime for assisted reproduction. 3 (e) Birth Certificate: Presumptive Effect. A birth certificate identifying an 4 individual other than the birth mother as the other parent of a child of assisted reproduction 5 presumptively establishes a parent-child relationship between the child and that individual. 6 (f) Parent-Child Relationship with Another. Except as otherwise provided in 7 subsections (g), (i), and (j), and unless a parent-child relationship is established under 8 subsection (d) or (e), a parent-child relationship exists between a child of assisted 9 reproduction and an individual other than the birth mother who consented to assisted 10 reproduction by the birth mother with intent to be treated as the other parent of the child. 11 Consent to assisted reproduction by the birth mother with intent to be treated as the other 12 parent of the child is established if the individual: 13 (1) before or after the child’s birth, signed a record that, considering all 14 the facts and circumstances, evidences the individual’s consent; or 15 (2) in the absence of a signed record under paragraph (1): 16 (A) functioned as a parent of the child no later than two years after 17 the child’s birth; 18 (B) intended to function as a parent of the child no later than two 19 years after the child’s birth but was prevented from carrying out that intent by 20 death, incapacity, or other circumstances; or
  34. 34. 34 1 (C) intended to be treated as a parent of a posthumously conceived 2 child, if that intent is established by clear and convincing evidence. 3 (g) Record Signed More than Two Years after the Birth of the Child: Effect. 4 For the purpose of subsection (f) (1), neither an individual who signed a record more than 5 two years after the birth of the child, nor a relative of that individual who is not also a relative 6 of the birth mother, inherits from or through the child unless the individual functioned as a 7 parent of the child before the child reached 18 years of age. 8 (h) Presumption: Birth Mother Is Married or Surviving Spouse. For the 9 purpose of subsection (f) (2), the following rules apply: 10 (1) If the birth mother is married and no divorce proceeding is pending, in 11 the absence of clear and convincing evidence to the contrary, her spouse satisfies 12 subsection (f)(2)(A) or (B). 13 (2) If the birth mother is a surviving spouse and at her deceased spouse’s 14 death no divorce proceeding was pending, in the absence of clear and convincing 15 evidence to the contrary, her deceased spouse satisfies subsection (f)(2)(B) or (C). 16 (i) Divorce Before Placement of Eggs, Sperm, or Embryos. If a married 17 couple is divorced before placement of eggs, sperm, or embryos, a child resulting from the 18 assisted reproduction is not a child of the birth mother’s former spouse, unless the former 19 spouse consented in a record that if assisted reproduction were to occur after divorce, the 20 child would be treated as the former spouse’s child.
  35. 35. 35 1 (j) Withdrawal of Consent Before Placement of Eggs, Sperm, or Embryos. If, 2 in a record, an individual withdraws consent to assisted reproduction before placement of 3 eggs, sperm, or embryos, a child resulting from the assisted reproduction is not a child of that 4 individual, unless the individual subsequently satisfies subsection (f). 5 (k) When Posthumously Conceived Child Treated as in Gestation. If, under 6 this section, an individual is a parent of a child of assisted reproduction who is conceived 7 after the individual’s death, the child is treated as in gestation at the individual’s death for 8 purposes of section 2-104(a) (2) if the child is: 9 (1) in utero not later than 36 months after the individual’s death; or 10 (2) born not later than 45 months after the individual’s death. 11 §2-121. CHILD BORN TO GESTATIONAL CARRIER. 12 (a) Definitions. In this section: 13 (1) “Gestational agreement” means an enforceable or unenforceable 14 agreement for assisted reproduction in which a woman agrees to carry a child to birth 15 for an intended parent, intended parents, or an individual described in subsection (e). 16 (2) “Gestational carrier” means a woman who is not an intended parent 17 who gives birth to a child under a gestational agreement. The term is not limited to a 18 woman who is the child’s genetic mother. 19 (3) “Gestational child” means a child born to a gestational carrier under a 20 gestational agreement.
  36. 36. 36 1 (4) “Intended parent” means an individual who entered into a gestational 2 agreement providing that the individual will be the parent of a child born to a 3 gestational carrier by means of assisted reproduction. The term is not limited to an 4 individual who has a genetic relationship with the child. 5 (b) Court Order Adjudicating Parentage: Effect. A parent-child relationship is 6 conclusively established by a court order designating the parent or parents of a gestational 7 child. 8 (c) Gestational Carrier. A parent-child relationship between a gestational child 9 and the child’s gestational carrier does not exist unless the gestational carrier is: 10 (1) designated as a parent of the child in a court order described in 11 subsection (b); or 12 (2) the child’s genetic mother and a parent-child relationship do not exist 13 under this section with an individual other than the gestational carrier. 14 (d) Parent-Child Relationship with Intended Parent or Parents. In the 15 absence of a court order under subsection (b), a parent-child relationship exists between a 16 gestational child and an intended parent who: 17 (1) functioned as a parent of the child no later than two years after the 18 child’s birth; or 19 (2) died while the gestational carrier was pregnant if:
  37. 37. 37 1 (A) there were two intended parents and the other intended parent 2 functioned as a parent of the child no later than two years after the child’s 3 birth; 4 (B) there were two intended parents, the other intended parent also 5 died while the gestational carrier was pregnant, and a relative of either 6 deceased intended parent or the spouse or surviving spouse of a relative of 7 either deceased intended parent functioned as a parent of the child no later 8 than two years after the child’s birth; or 9 (C) there was no other intended parent and a relative of or the 10 spouse or surviving spouse of a relative of the deceased intended parent 11 functioned as a parent of the child no later than two years after the child’s 12 birth. 13 (e) Gestational Agreement after Death or Incapacity. In the absence of a court 14 order under subsection (b), a parent-child relationship exists between a gestational child and 15 an individual whose sperm or eggs were used after the individual’s death or incapacity to 16 conceive a child under a gestational agreement entered into after the individual’s death or 17 incapacity if the individual intended to be treated as the parent of the child. The individual’s 18 intent may be shown by: 19 (1) a record signed by the individual which considering all the facts and 20 circumstances evidences the individual’s intent; or
  38. 38. 38 1 (2) other facts and circumstances establishing the individual’s intent by 2 clear and convincing evidence. 3 (f) Presumption: Gestational Agreement after Spouse’s Death or Incapacity. 4 Except as otherwise provided in subsection (g), and unless there is clear and convincing 5 evidence of a contrary intent, an individual is deemed to have intended to be treated as the 6 parent of a gestational child for purposes of subsection (e)(2) if: 7 (1) the individual, before death or incapacity, deposited the sperm or eggs 8 that were used to conceive the child; 9 (2) when the individual deposited the sperm or eggs, the individual was 10 married and no divorce proceeding was pending; and 11 (3) the individual’s spouse or surviving spouse functioned as a parent of 12 the child no later than two years after the child’s birth. 13 (g) Subsection (f) Presumption Inapplicable. The presumption under subsection 14 (f) does not apply if there is: 15 (1) a court order under subsection (b); or 16 (2) a signed record that satisfies subsection (e) (1). 17 (h) When Posthumously Conceived Gestational Child Treated as in 18 Gestation. If, under this section, an individual is a parent of a gestational child who is 19 conceived after the individual’s death, the child is treated as in gestation at the individual’s 20 death for purposes of section 2-104(a) (2) if the child is: 21 (1) in utero not later than 36 months after the individual’s death; or
  39. 39. 39 1 (2) born not later than 45 months after the individual’s death. 2 (i) No Effect on Other Law. This section does not affect law of the Virgin 3 Islands other than this title regarding the enforceability or validity of a gestational agreement. 4 §2-122. EQUITABLE ADOPTION. This subpart does not affect the doctrine of equitable 5 adoption. 6 PART 2 7 ELECTIVE SHARE OF SURVIVING SPOUSE 8 §2-201. Definitions. 9 In this part: 10 (1) As used in sections other than section 2-205, "decedent's nonprobate transfers 11 to others" means the amounts that are included in the augmented estate under section 2-205. 12 (2) "Fractional interest in property held in joint tenancy with the right of 13 survivorship," whether the fractional interest is unilaterally severable or not, means the 14 fraction, the numerator of which is one and the denominator of which, if the decedent was a 15 joint tenant, is one plus the number of joint tenants who survive the decedent and which, if 16 the decedent was not a joint tenant, is the number of joint tenants. 17 (3) "Marriage," as it relates to a transfer by the decedent during marriage, means 18 any marriage of the decedent to the decedent's surviving spouse. 19 (4) "Nonadverse party" means a person who does not have a substantial beneficial 20 interest in the trust or other property arrangement that would be adversely affected by the 21 exercise or nonexercise of the power that the person possesses respecting the trust or other 22 property arrangement, excluding a person having a general power of appointment over 23 property who is deemed to have a beneficial interest in the property.
  40. 40. 40 1 (5) "Power" or "power of appointment" includes a power to designate the 2 beneficiary of a beneficiary designation. 3 (6) "Presently exercisable general power of appointment" means a power of 4 appointment under which, at the time in question, the decedent, whether or not the decedent 5 then had the capacity to exercise the power, held a power to create a present or future interest 6 in himself, his creditors, his estate, or creditors of his estate, and includes a power to revoke 7 or invade the principal of a trust or other property arrangement. 8 (7) "Probate estate" means property that would pass by intestate succession if the 9 decedent died without a valid will. 10 (8) "Property" includes values subject to a beneficiary designation. 11 (9) "Right to income" includes a right to payments under a commercial or private 12 annuity, an annuity trust, a unitrust, or a similar arrangement. 13 (10) "Transfer," as it relates to a transfer by or of the decedent, includes 14 (A) an exercise or release of a presently exercisable general power of 15 appointment held by the decedent, 16 (B) a lapse at death of a presently exercisable general power of 17 appointment held by the decedent, and 18 (C) an exercise, release, or lapse of a general power of appointment that 19 the decedent created in himself and of a power described in Section 2-205(2)(ii) that 20 the decedent conferred on a nonadverse party. 21 §2-202. ELECTIVE SHARE. 22 (a) Elective-Share Amount. The surviving spouse of a decedent who dies 23 domiciled in the Virgin Islands has a right of election, under the limitations and conditions
  41. 41. 41 1 stated in this part, to take an elective-share amount equal to 50 percent of the value of the 2 marital-property portion of the augmented estate. 3 (b) Supplemental Elective-Share Amount. If the sum of the amounts described 4 in sections 2-207, 2-209(a) (1), and that part of the elective-share amount payable from the 5 decedent’s net probate estate and nonprobate transfers to others under section 2-209(c) and 6 (d) is less than $75,000, the surviving spouse is entitled to a supplemental elective-share 7 amount equal to $75,000, minus the sum of the amounts described in those sections. The 8 supplemental elective-share amount is payable from the decedent’s net probate estate and 9 from recipients of the decedent’s nonprobate transfers to others in the order of priority set 10 forth in section 2-209(c) and (d). 11 (c) Effect of Election on Statutory Benefits. If the right of election is exercised 12 by or on behalf of the surviving spouse, the surviving spouse’s homestead allowance, exempt 13 property, and family allowance, if any, are not charged against but are in addition to the 14 elective-share and supplemental elective-share amounts. 15 (d) Non-Domiciliary. The right, if any, of the surviving spouse of a decedent 16 who dies domiciled outside the Virgin Islands to take an elective share in property in the 17 Virgin Islands is governed by the law of the decedent’s domicile at death. 18 §2-203. Composition of the Augmented Estate. 19 Subject to section 2-208, the value of the augmented estate, to the extent provided in 20 sections 2-204, 2-205, 2-206, and 2-207, consists of the sum of the values of all property, 21 whether real or personal; movable or immovable, tangible or intangible, wherever situated, 22 that constitute the decedent's net probate estate, the decedent's nonprobate transfers to others, 23 the decedent's nonprobate transfers to the surviving spouse, and the surviving spouse's 24 property and nonprobate transfers to others.
  42. 42. 42 1 § 2-204. Decedent's Net Probate Estate. 2 The value of the augmented estate includes the value of the decedent's probate estate, 3 reduced by funeral and administration expenses, homestead allowance, family allowances, 4 exempt property, and enforceable claims. 5 The value of the augmented estate includes the value of the decedent's nonprobate 6 transfers to others, not included under section 2-204, of any of the following types, in the 7 amount provided respectively for each type of transfer: 8 (1) Property owned or owned in substance by the decedent immediately 9 before death that passed outside probate at the decedent's death. Property included 10 under this category consists of: 11 (i) Property over which the decedent alone, immediately before 12 death, held a presently exercisable general power of appointment. The 13 amount included is the value of the property subject to the power, to the 14 extent the property passed at the decedent's death, by exercise, release, lapse, 15 in default, or otherwise, to or for the benefit of any person other than the 16 decedent's estate or surviving spouse. 17 (ii) The decedent's fractional interest in property held by the 18 decedent in joint tenancy with the right of survivorship. The amount included 19 is the value of the decedent's fractional interest, to the extent the fractional 20 interest passed by right of survivorship at the decedent's death to a surviving 21 joint tenant other than the decedent's surviving spouse. 22 (iii) The decedent's ownership interest in property or accounts held 23 in POD, TOD, or co-ownership registration with the right of survivorship. The 24 amount included is the value of the decedent's ownership interest, to the extent
  43. 43. 43 1 the decedent's ownership interest passed at the decedent's death to or for the 2 benefit of any person other than the decedent's estate or surviving spouse. 3 (iv) Proceeds of insurance, including accidental death benefits, on 4 the life of the decedent, if the decedent owned the insurance policy 5 immediately before death or if and to the extent the decedent alone and 6 immediately before death held a presently exercisable general power of 7 appointment over the policy or its proceeds. The amount included is the value 8 of the proceeds, to the extent they were payable at the decedent's death to or 9 for the benefit of any person other than the decedent's estate or surviving 10 spouse. 11 (2) Property transferred in any of the following forms by the decedent 12 during marriage: 13 (i) Any irrevocable transfer in which the decedent retained the 14 right to the possession or enjoyment of, or to the income from, the property if 15 and to the extent the decedent's right terminated at or continued beyond the 16 decedent's death. The amount included is the value of the fraction of the 17 property to which the decedent's right related, to the extent the fraction of the 18 property passed outside probate to or for the benefit of any person other than 19 the decedent's estate or surviving spouse. 20 (ii) Any transfer in which the decedent created a power over 21 income or property, exercisable by the decedent alone or in conjunction with 22 any other person, or exercisable by a nonadverse party, to or for the benefit 23 of the decedent, creditors of the decedent, the decedent's estate, or creditors
  44. 44. 44 1 of the decedent's estate. The amount included with respect to a power over 2 property is the value of the property subject to the power, and the amount 3 included with respect to a power over income is the value of the property that 4 produces or produced the income, to the extent the power in either case was 5 exercisable at the decedent's death to or for the benefit of any person other 6 than the decedent's surviving spouse or to the extent the property passed at 7 the decedent's death, by exercise, release, lapse, in default, or otherwise, to or 8 for the benefit of any person other than the decedent's estate or surviving 9 spouse. If the power is a power over both income and property and the 10 preceding sentence produces different amounts, the amount included is the 11 greater amount. 12 (3) Property that passed during marriage and during the two-year period 13 next preceding the decedent's death as a result of a transfer by the decedent if the 14 transfer was of any of the following types: 15 (i) Any property that passed as a result of the termination of a 16 right or interest in, or power over, property that would have been included in 17 the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph 18 (2), if the right, interest, or power had not terminated until the decedent's 19 death. The amount included is the value of the property that would have been 20 included under those paragraphs if the property were valued at the time the 21 right, interest, or power terminated, and is included only to the extent the 22 property passed upon termination to or for the benefit of any person other than 23 the decedent or the decedent's estate, spouse, or surviving spouse. As used in
  45. 45. 45 1 this subparagraph, "termination," with respect to a right or interest in property, 2 occurs when the right or interest terminated by the terms of the governing 3 instrument or the decedent transferred or relinquished the right or interest, 4 and, with respect to a power over property, occurs when the power terminated 5 by exercise, release, lapse, default, or otherwise, but, with respect to a power 6 described in paragraph (1)(i), "termination" occurs when the power terminated 7 by exercise or release, but not otherwise. 8 (ii) Any transfer of or relating to an insurance policy on the life of 9 the decedent if the proceeds would have been included in the augmented 10 estate under paragraph (1) (iv) had the transfer not occurred. The amount 11 included is the value of the insurance proceeds to the extent the proceeds were 12 payable at the decedent's death to or for the benefit of any person other than 13 the decedent's estate or surviving spouse. 14 (iii) Any transfer of property, to the extent not otherwise included 15 in the augmented estate, made to or for the benefit of a person other than the 16 decedent's surviving spouse. The amount included is the value of the 17 transferred property to the extent the aggregate transfers to any one donee in 18 either of the two years exceeded $10,000. 19 § 2-205. Decedent's Nonprobate Transfers to Others. 20 The value of the augmented estate includes the value of the decedent's nonprobate 21 transfers to others, not included under section 2-204, of any of the following types, in the 22 amount provided respectively for each type of transfer:
  46. 46. 46 1 (1) Property owned or owned in substance by the decedent immediately 2 before death that passed outside probate at the decedent's death. Property included 3 under this category consists of: 4 (i) Property over which the decedent alone, immediately before 5 death, held a presently exercisable general power of appointment. The amount 6 included is the value of the property subject to the power, to the extent the 7 property passed at the decedent's death, by exercise, release, lapse, in default, 8 or otherwise, to or for the benefit of any person other than the decedent's 9 estate or surviving spouse. 10 (ii) The decedent's fractional interest in property held by the 11 decedent in joint tenancy with the right of survivorship. The amount included 12 is the value of the decedent's fractional interest, to the extent the fractional 13 interest passed by right of survivorship at the decedent's death to a surviving 14 joint tenant other than the decedent's surviving spouse. 15 (iii) The decedent's ownership interest in property or accounts held 16 in POD, TOD, or co-ownership registration with the right of survivorship. The 17 amount included is the value of the decedent's ownership interest, to the extent 18 the decedent's ownership interest passed at the decedent's death to or for the 19 benefit of any person other than the decedent's estate or surviving spouse. 20 (iv) Proceeds of insurance, including accidental death benefits, on 21 the life of the decedent, if the decedent owned the insurance policy 22 immediately before death or if and to the extent the decedent alone and 23 immediately before death held a presently exercisable general power of 24 appointment over the policy or its proceeds. The amount included is the value
  47. 47. 47 1 of the proceeds, to the extent they were payable at the decedent's death to or 2 for the benefit of any person other than the decedent's estate or surviving 3 spouse. 4 (2) Property transferred in any of the following forms by the decedent 5 during marriage: 6 (i) Any irrevocable transfer in which the decedent retained the 7 right to the possession or enjoyment of, or to the income from, the property if 8 and to the extent the decedent's right terminated at or continued beyond the 9 decedent's death. The amount included is the value of the fraction of the 10 property to which the decedent's right related, to the extent the fraction of the 11 property passed outside probate to or for the benefit of any person other than 12 the decedent's estate or surviving spouse. 13 (ii) Any transfer in which the decedent created a power over 14 income or property, exercisable by the decedent alone or in conjunction with 15 any other person, or exercisable by a nonadverse party, to or for the benefit of 16 the decedent, creditors of the decedent, the decedent's estate, or creditors of 17 the decedent's estate. The amount included with respect to a power over 18 property is the value of the property subject to the power, and the amount 19 included with respect to a power over income is the value of the property that 20 produces or produced the income, to the extent the power in either case was 21 exercisable at the decedent's death to or for the benefit of any person other 22 than the decedent's surviving spouse or to the extent the property passed at the 23 decedent's death, by exercise, release, lapse, in default, or otherwise, to or for 24 the benefit of any person other than the decedent's estate or surviving spouse.
  48. 48. 48 1 If the power is a power over both income and property and the preceding 2 sentence produces different amounts, the amount included is the greater 3 amount. 4 (3) Property that passed during marriage and during the two-year period 5 next preceding the decedent's death as a result of a transfer by the decedent if the 6 transfer was of any of the following types: 7 (i) Any property that passed as a result of the termination of a 8 right or interest in, or power over, property that would have been included in 9 the augmented estate under paragraph (1)(i), (ii), or (iii), or under paragraph 10 (2), if the right, interest, or power had not terminated until the decedent's 11 death. The amount included is the value of the property that would have 12 been included under those paragraphs if the property were valued at the time 13 the right, interest, or power terminated, and is included only to the extent the 14 property passed upon termination to or for the benefit of any person other 15 than the decedent or the decedent's estate, spouse, or surviving spouse. As 16 used in this subparagraph, "termination," with respect to a right or interest in 17 property, occurs when the right or interest terminated by the terms of the 18 governing instrument or the decedent transferred or relinquished the right or 19 interest, and, with respect to a power over property, occurs when the power 20 terminated by exercise, release, lapse, default, or otherwise, but, with 21 respect to a power described in paragraph (1)(i), "termination" occurs when 22 the power terminated by exercise or release, but not otherwise. 23 (ii) Any transfer of or relating to an insurance policy on the life of 24 the decedent if the proceeds would have been included in the augmented
  49. 49. 49 1 estate under paragraph (1) (iv) had the transfer not occurred. The amount 2 included is the value of the insurance proceeds to the extent the proceeds were 3 payable at the decedent's death to or for the benefit of any person other than 4 the decedent's estate or surviving spouse. 5 (iii) Any transfer of property, to the extent not otherwise included 6 in the augmented estate, made to or for the benefit of a person other than the 7 decedent's surviving spouse. The amount included is the value of the 8 transferred property to the extent the aggregate transfers to any one donee in 9 either of the two years exceeded $10,000. 10 § 2-206. Decedent's Nonprobate Transfers to the Surviving Spouse. 11 Excluding property passing to the surviving spouse under the federal Social Security 12 System, the value of the augmented estate includes the value of the decedent's nonprobate 13 transfers to the decedent's surviving spouse, which consist of all property that passed outside 14 probate at the decedent's death from the decedent to the surviving spouse by reason of the 15 decedent's death, including: 16 (1) the decedent's fractional interest in property held as a joint tenant with the 17 right of survivorship, to the extent that the decedent's fractional interest passed to the 18 surviving spouse as surviving joint tenant, 19 (2) the decedent's ownership interest in property or accounts held in co-ownership 20 registration with the right of survivorship, to the extent the decedent's ownership interest 21 passed to the surviving spouse as surviving co owner, and
  50. 50. 50 1 (3) all other property that would have been included in the augmented estate 2 under section 2-205 (1) or (2) had it passed to or for the benefit of a person other than the 3 decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate, or estate 4 creditors. 5 § 2-207. Surviving Spouse's Property and Nonprobate Transfers to Others. 6 (a) Included Property. Except to the extent included in the augmented estate 7 under section 2-204 or 2-206, the value of the augmented estate includes the value of: 8 (1) property that was owned by the decedent's surviving spouse at the 9 decedent's death, including: 10 (i) the surviving spouse's fractional interest in property held in 11 joint tenancy with the right of survivorship, 12 (ii) the surviving spouse's ownership interest in property or 13 accounts held in co-ownership registration with the right of survivorship, and 14 (iii) property that passed to the surviving spouse by reason of the 15 decedent's death, but not including the spouse's right to homestead allowance, 16 family allowance, exempt property, or payments under the federal Social 17 Security system; and 18 (2) property that would have been included in the surviving spouse's 19 nonprobate transfers to others, other than the spouse's fractional and ownership 20 interests included under subsection (a)(1)(i) or (ii), had the spouse been the decedent. 21 (b) Time of Valuation. Property included under this section is valued at the 22 decedent's death, taking the fact that the decedent predeceased the spouse into account, but,
  51. 51. 51 1 for purposes of subsection (a) (1) (i) and (ii), the values of the spouse's fractional and 2 ownership interests are determined immediately before the decedent's death if the decedent 3 was then a joint tenant or a co owner of the property or accounts. For purposes of subsection 4 (a)(2), proceeds of insurance that would have been included in the spouse's nonprobate 5 transfers to others under Section 2-205(1)(iv) are not valued as if he were deceased. 6 (c) Reduction for Enforceable Claims. The value of property included under 7 this section is reduced by enforceable claims against the surviving spouse. 8 §2-208. Exclusions, Valuation, and Overlapping Application. 9 (a) Exclusions. The value of any property is excluded from the decedent's 10 nonprobate transfers to others (i) to the extent the decedent received adequate and full 11 consideration in money or money's worth for a transfer of the property or (ii) if the property 12 was transferred with the written joinder of, or if the transfer was consented to in writing by, 13 the surviving spouse. 14 (b) Valuation. The value of property: 15 (1) included in the augmented estate under section 2-205, 2-206, or 2-207 16 is reduced in each category by enforceable claims against the included property; and 17 (2) includes the commuted value of any present or future interest and the 18 commuted value of amounts payable under any trust, life insurance settlement option, 19 annuity contract, public or private pension, disability compensation, death benefit or 20 retirement plan, or any similar arrangement, exclusive of the federal Social Security 21 system. 22 (c) Overlapping Application; No Double Inclusion. In case of overlapping 23 application to the same property of the paragraphs or subparagraphs of section 2-205, 2-206,
  52. 52. 52 1 or 2-207, the property is included in the augmented estate under the provision yielding the 2 greatest value, and under only one overlapping provision if they all yield the same value. 3 §2-209. Sources from Which Elective Share Payable. 4 (a) Elective-Share Amount Only. In a proceeding for an elective share, the 5 following are applied first to satisfy the elective-share amount and to reduce or eliminate any 6 contributions due from the decedent's probate estate and recipients of the decedent's 7 nonprobate transfers to others: 8 (1) amounts included in the augmented estate under section 2-204 9 which pass or have passed to the surviving spouse by testate or intestate 10 succession and amounts included in the augmented estate under section 2-206; 11 and 12 (2) amounts included in the augmented estate under section 2-207 13 up to the applicable percentage thereof. For the purposes of this subsection, 14 the "applicable percentage" is twice the elective-share percentage set forth in 15 the schedule in section 2-202 (a) appropriate to the length of time the spouse 16 and the decedent were married to each other. 17 (b) Unsatisfied Balance of Elective-Share Amount; Supplemental 18 Elective-Share Amount. If, after the application of subsection (a), the elective-share 19 amount is not fully satisfied or the surviving spouse is entitled to a supplemental 20 elective-share amount, amounts included in the decedent's probate estate and in the 21 decedent's nonprobate transfers to others, other than amounts included under section 2-205 22 (3) (i) or (iii), are applied first to satisfy the unsatisfied balance of the elective-share amount 23 or the supplemental elective-share amount. The decedent's probate estate and that portion of
  53. 53. 53 1 the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied 2 balance of the elective-share amount or for the supplemental elective-share amount is 3 equitably apportioned among the recipients of the decedent's probate estate and of that 4 portion of the decedent's nonprobate transfers to others in proportion to the value of their 5 interests therein. 6 (c) Unsatisfied Balance of Elective-Share and Supplemental Elective-Share 7 Amounts. If, after the application of subsections (a) and (b), the elective-share or 8 supplemental elective-share amount is not fully satisfied, the remaining portion of the 9 decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance 10 of the elective-share or supplemental elective-share amount is equitably apportioned among 11 the recipients of the remaining portion of the decedent's nonprobate transfers to others in 12 proportion to the value of their interests therein. 13 §2-210. Personal Liability of Recipients. 14 (a) Only original recipients of the decedent's nonprobate transfers to others, and 15 the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the 16 donees have the property or its proceeds, are liable to make a proportional contribution 17 toward satisfaction of the surviving spouse's elective-share or supplemental elective-share 18 amount. A person liable to make contribution may choose to give up the proportional part of 19 the decedent's nonprobate transfers to him or to pay the value of the amount for which he is 20 liable. 21 (b) If any section or part of any section of this Part is preempted by federal law 22 with respect to a payment, an item of property, or any other benefit included in the decedent's 23 nonprobate transfers to others, a person who, not for value, receives the payment, item of

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