Chapter 131 Oregon Laws 1999

Session Law

AN ACT

HB 2290

Relating to survivorship; creating new provisions; and repealing ORS 112.085, 112.575, 112.585, 112.595, 112.605, 112.615, 112.625, 112.635 and 112.645.

Be It Enacted by the People of the State of Oregon:

SECTION 1. Definitions. As used in sections 1 to 8 of this 1999 Act:

(1) "Co-owners with right of survivorship" means joint tenants, tenants by the entirety and any other co-owners of property or accounts that are held in a manner that entitles one or more of the owners to ownership of the whole of the property or account upon the death of one or more of the other owners.

(2) "Governing instrument" means:

(a) A deed;

(b) A will;

(c) A trust;

(d) An insurance or annuity policy account with a payable-on-death designation;

(e) A pension, profit-sharing, retirement or similar benefit plan;

(f) An instrument creating or exercising a power of appointment or a power of attorney; or

(g) Any other dispositive, appointive or nominative instrument of a type similar to those instruments specified in this subsection.

(3) "Payor" means a trustee, insurer, employer, governmental agency, political subdivision or any other person authorized or obligated by law or by a governing instrument to make payments.

SECTION 2. Requirement of survival by 120 hours. Except as provided in section 6 of this 1999 Act, if the title to property, the devolution of property, the right to elect an interest in property or the right to exempt property depends upon whether a specified person survives the death of another person, the specified person shall be deemed to have died before the other person unless it is established by clear and convincing evidence that the specified person survived the other person by at least 120 hours.

SECTION 3. Construction of survivorship provisions in governing instruments. Except as provided in section 6 of this 1999 Act, if a governing instrument contains a provision the operation of which is conditioned on whether a specified person survives the death of another person or survives another event, the specified person shall be deemed to have died before the other person or before the other event unless it is established by clear and convincing evidence that the specified person survived the other person or event by at least 120 hours.

SECTION 4. Co-owners with right of survivorship; requirement of survival by 120 hours. (1) Except as provided in section 6 of this 1999 Act, if property is held by two co-owners with right of survivorship and both co-owners are deceased, one-half of the property passes as if one co-owner had survived the second co-owner by 120 hours or more, and one-half of the property passes as if the second co-owner had survived the first co-owner by 120 hours or more, unless it is established by clear and convincing evidence that one of two co-owners survived the other co-owner by at least 120 hours.

(2) Except as provided in section 6 of this 1999 Act, if property is held by more than two co-owners and it is not established by clear and convincing evidence that at least one of the owners survived the others by at least 120 hours, the property passes in the proportion that one bears to the whole number of co-owners.

SECTION 5. Evidence of death or status. (1) For the purpose of establishing death under the survivorship rules established under sections 1 to 8 of this 1999 Act, death occurs when an individual has sustained irreversible cessation of circulatory and respiratory functions, or when there has been an irreversible cessation of all functions of the entire brain, including the brain stem. A determination of death must be made in accordance with accepted medical standards.

(2)(a) For the purpose of establishing death under the survivorship rules established under sections 1 to 8 of this 1999 Act, a certified or authenticated copy of a death certificate purporting to be issued by an official or agency of the place where the death is alleged to have occurred is prima facie evidence of the identity of the decedent and of the fact, place, date and time of death.

(b) A certified or authenticated copy of any record or report of a governmental agency, domestic or foreign, that an individual is missing, detained, dead or alive is prima facie evidence of the status of the person and of the dates, circumstances and places disclosed by the record or report.

(3) In the absence of prima facie evidence of death under subsection (2) of this section, the facts surrounding a person's death may be established by clear and convincing evidence. Circumstantial evidence may be considered in determining whether a person has died and the circumstances of the death.

(4) An individual whose death is not otherwise established under this section but who is absent for a continuous period of five years is presumed to be dead if the person has made no contact with another person during the five-year period and the absence of the person cannot be satisfactorily explained after diligent search or inquiry. A person presumed dead under this subsection is presumed to have died at the end of the five-year period unless it is proved by a preponderance of the evidence that death occurred at a different time.

(5) In the absence of evidence contradicting a time of death specified in a document described in subsection (2) of this section, a document described in subsection (2) of this section that indicates a time of death 120 hours or more after the time of death of another person conclusively establishes that the person specified in the document survived the other person by at least 120 hours, without regard to the manner in which the time of death of the other person is determined.

SECTION 6. Exceptions. (1) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply in any situation in which application would result in escheat of an intestate estate to the state.

(2) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply if a governing instrument contains language that specifically addresses the possibility of simultaneous deaths or deaths in a common disaster, and the language of the instrument is controlling under the circumstances of the deaths.

(3) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply if a governing instrument expressly provides that a person is not required to survive the death of another person or to survive another event by any specified period.

(4) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply if the governing instrument expressly requires the person to survive the death of another person or to survive another event for a specified period of time other than provided under the survivorship rules established under sections 1 to 8 of this 1999 Act. If the governing instrument so provides, survival of the death of the other person or survival of the other event by at least the specified amount of time must be established by clear and convincing evidence.

(5) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply if application of those rules would cause a nonvested property interest or a power of appointment to be invalid under ORS 105.950 (1)(a), (2)(a) or (3)(a). In cases subject to this subsection, survival of the death of the other person or survival of the other event must still be established by clear and convincing evidence.

(6) The survivorship rules established under sections 1 to 8 of this 1999 Act do not apply in cases in which there are multiple governing instruments and application of the rules to the governing instruments would result in an unintended failure or duplication of a disposition. In cases subject to this subsection, survival of the death of the other person or survival of the other event must still be established by clear and convincing evidence.

SECTION 7. Protection of payors and other third parties. (1) Unless a payor or other third party has received written notice of a claim under subsection (2) of this section, the payor or other third party is not liable for making a payment to, transferring property to, or conferring any other benefit on a person who appears to be entitled to the payment, property or benefit under a good faith reading of a governing instrument but who is not entitled to the payment, property or benefit by reason of the survivorship rules established under sections 1 to 8 of this 1999 Act. A payor or other third party is liable for a payment, property or other benefit conveyed after the payor or other third party receives written notice of a claim under subsection (2) of this section.

(2) Written notice of a claim that a person is not entitled to payment, property or other benefit by reason of the survivorship rules established under sections 1 to 8 of this 1999 Act must be:

(a) Mailed to the main office or home of a payor or other third party by registered or certified mail, return receipt requested; or

(b) Served upon the payor or other third party in the manner provided by ORCP 7 for service of summons in a civil action.

(3) Upon receipt of written notice of a claim under subsection (2) of this section, a payor or other third party may deposit any money or property that is subject to the claim with any court conducting probate proceedings for one of the decedents' estates. If probate proceedings have not been commenced, the money or property may be deposited with the court with probate jurisdiction in the county in which one of the decedents resided. The court shall hold the funds or property and shall determine the rights of all parties under the governing instrument. Deposits made with the court under this subsection discharge the payor or other third party from all claims for the value of amounts paid to or items of property deposited with the court.

SECTION 8. Protection of bona fide purchasers; personal liability of recipient. (1) Unless the person has notice of the claim at the time the purchase, payment or delivery is made, a person who purchases property for value, or who receives payment, property or other benefit in full or partial satisfaction of a legally enforceable obligation, is not liable to another person with a claim to the payment, property or benefit by reason of the operation of the survivorship rules established under sections 1 to 8 of this 1999 Act and need not return the payment, property or other benefit.

(2) A person who receives payment, property, or other benefit to which the person is not entitled by reason of the survivorship rules established under sections 1 to 8 of this 1999 Act must return the payment, property or other benefit if:

(a) The person was aware of a claim to the payment, property or other benefit under the survivorship rules established under sections 1 to 8 of this 1999 Act at the time the purchase, payment or delivery was made; or

(b) The person received the payment, property or other benefit for no value.

(3) A person who receives any payment, property or other benefit to which the person is not entitled because any part of sections 1 to 8 of this 1999 Act is preempted by federal law must return the payment, property or other benefit if the person received the payment, property or other benefit for no value.

(4) Any person who is required to return any payment, property or other benefit under this section and who does not return the payment, property or other benefit is personally liable to a person with a right to the property under the survivorship rules established under sections 1 to 8 of this 1999 Act or with a right to the property by reason of federal preemption of all or part of the survivorship rules.

SECTION 9. Sections 2, 3 and 4 of this 1999 Act apply only to deaths that occur on or after the effective date of this 1999 Act. Notwithstanding the repeal of statutory sections by section 11 of this 1999 Act, the right to any payment, property or other benefit arising out of any death that occurs before the effective date of this 1999 Act shall continue to be governed by ORS 112.085 (1997 Edition) and 112.575 to 112.645 (1997 Edition).

SECTION 10. The section captions used in this 1999 Act are provided only for the convenience of the reader and do not become part of the statutory law of this state or express any legislative intent in the enactment of this 1999 Act.

SECTION 11. ORS 112.085, 112.575, 112.585, 112.595, 112.605, 112.615, 112.625, 112.635 and 112.645 are repealed.

Approved by the Governor April 26, 1999

Filed in the office of Secretary of State April 26, 1999

Effective date October 23, 1999

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