New york testamentary substitutes

Gifts Within One Year of Death Transfers of property made within one year of the death of the decedent to the extent that the decedent did not receive adequate and full consideration for the gift are considered testamentary substitutes. Property In Which Decedent Retained A Life Estate Any disposition of property or contractual arrangement made by the decedent, in trust or otherwise, to the extent that after August 31, the decedent retained for her life the possession or enjoyment of or the right to income for life, or at the date of her death retained a right to revoke the disposition or power to consume, invade or dispose of the principal.

However, this does not apply to any right which vested on or before August 31, Nassau Co. In Matter of Zupa, 48 A. E Any disposition of property made by the decedent whereby property, at the date of his or her death, is held i by the decedent and another person as joint tenants with a right of survivorship or as tenants by the entirety where the disposition was made after August thirty-first, nineteen hundred sixty-six, or ii by the decedent and is payable on his or her death to a person other than the decedent or his or her estate.

F Any disposition of property or contractual arrangement made by the decedent, in trust or otherwise, to the extent that the decedent i after August thirty-first, nineteen hundred ninety-two, retained for his or her life or for any period not ascertainable without reference to his or her death or for any period which does not in fact end before his or her death the possession or enjoyment of, or the right to income from, the property except to the extent that such disposition or contractual arrangement was for an adequate consideration in money or money's worth; or ii at the date of his or her death retained either alone or in conjunction with any other person who does not have a substantial adverse interest, by the express provisions of the disposing instrument, a power to revoke such disposition or a power to consume, invade or dispose of the principal thereof.

The provisions of this subparagraph shall not affect the right of any income beneficiary to the income undistributed or accrued at the date of death nor shall they impair or defeat any right which has vested on or before August thirty-first, nineteen hundred ninety-two.

G Any money, securities or other property payable under a thrift, savings, retirement, pension, deferred compensation, death benefit, stock bonus or profit-sharing plan, account, arrangement, system or trust, except that with respect to a plan to which subsection a 11 of section four hundred one of the United States Internal Revenue Code applies or a defined contribution plan to which such subsection does not apply pursuant to paragraph B iii thereof, only to the extent of fifty percent of the capital value thereof.

Notwithstanding the foregoing, a transaction described herein shall not constitute a testamentary substitute if the decedent designated the beneficiary or beneficiaries of the plan benefits on or before September first, nineteen hundred ninety-two and did not change such beneficiary designation thereafter.

H Any interest in property to the extent the passing of the principal thereof to or for the benefit of any person was subject to a presently exercisable general power of appointment, as defined in section two thousand forty-one of the United States Internal Revenue Code, held by the decedent immediately before his or her death or which the decedent, within one year of his or her death, released except to the extent such release results from a lapse of the power which is not treated as a release pursuant to section two thousand forty-one of the United States Internal Revenue Code or exercised in favor of any person other than himself or herself or his or her estate.

I A transfer of a security to a beneficiary pursuant to part 4 of article 13 of this chapter. The surviving spouse shall have the burden of establishing the proportion of the decedent's contribution; provided, however, that where the surviving spouse is the other party to the transaction, it will be conclusively presumed that the proportion of the decedent's contribution is one-half.

For the purpose of this subparagraph, the court may accept such evidence as is relevant and competent, whether or not the person offering such evidence would otherwise be competent to testify. A corporation or other person paying or transferring any funds or property described in clause G of subparagraph one of this paragraph to a person otherwise entitled thereto, shall be held harmless and free from any liability for making such payment or transfer, in any action or proceeding which involves such funds or property.

Such order may be made, on notice to such persons and in such manner as the court may direct, upon application of the surviving spouse or any other interested party and on proof that the surviving spouse has exercised his or her right of election under paragraph a.

In the latter case they were not within the reach of the surviving spouse when they should have been. The advisory committee found that these arrangements should be available in the calculation of determining the overall elective shares and be treated as testamentary substitutes. Accordingly, the advisory committee recommended that there be an extension of testamentary substitutes.

Specifically, they recommended that the following be included as testamentary substitutes:. Insurance policies on the life of the decedent wherein the decedent retained or transferred within one year of his death any incidents of ownership. An insurance policy with respect to which the decedent never possessed any incidents of ownership, including one purchased by an irrevocable trust of which the decedent was the grantor, would not have been included.

Certain revocable transfers, even predating the marriage, e. The proposed new Right of Election Statute as outlined above and set forth in the first report of the advisory committee to the Legislature, was passed in the Assembly and the matter was then taken up by the Senate.

By that time the insurance industry became tuned to the proposed new statute and how it would affect insurance and pension programs. Although they were invited to give any input to the advisory committee, we did not hear from them until we were advised by the majority leader in the Senate that our first report was in jeopardy because the insurance industry had made it known that they opposed the inclusion of insurance as a testamentary substitute and they had some questions regarding our recommendations concerning pension and retirement benefits.

We met with them and, while they were willing to have some minor modifications dealing with pension and retirement benefits as testamentary substitutes, they were absolutely opposed to having insurance included as a testamentary substitute. The Statute passed in the Senate as modified and was returned to the Assembly and a revised statute was passed and ultimately signed by the governor in John P.

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