1     
INHERITANCE DISQUALIFICATION AMENDMENTS

2     
2022 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Andrew Stoddard

5     
Senate Sponsor: Todd D. Weiler

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions related to the disinheritance of an individual who commits
10     a homicide.
11     Highlighted Provisions:
12          This bill:
13          ▸     defines and amends terms;
14          ▸     clarifies provisions related to the disinheritance of an individual who committed the
15     homicide of a decedent;
16          ▸     allows a decedent's estate to petition a court to preserve the assets and property of
17     an individual who committed the homicide of the decedent; and
18          ▸     makes technical and conforming changes.
19     Money Appropriated in this Bill:
20          None
21     Other Special Clauses:
22          This bill provides a coordination clause.
23     Utah Code Sections Affected:
24     AMENDS:
25          75-2-803, as last amended by Laws of Utah 2006, Chapter 270
26     Utah Code Sections Affected by Coordination Clause:
27          75-2-803, as last amended by Laws of Utah 2006, Chapter 270
28     

29     Be it enacted by the Legislature of the state of Utah:
30          Section 1. Section 75-2-803 is amended to read:
31          75-2-803. Definitions -- Effect of homicide on intestate succession, wills, trusts,
32     joint assets, life insurance, and beneficiary designations -- Petition -- Forfeiture --
33     Revocation.
34          (1) As used in this section:
35          (a) "Conviction" means the same as that term is defined in Section 77-38b-102.
36          (b) "Decedent" means a deceased individual.
37          [(a)] (c) "Disposition or appointment of property" includes a transfer of an item of
38     property or any other benefit to a beneficiary designated in a governing instrument.
39          [(b) "Disqualifying homicide" means a homicide established by a preponderance of the
40     evidence that meets the elements of any felony homicide offense in Title 76, Chapter 5,
41     Offenses Against the Person, except automobile homicide, applying the same principles of
42     culpability and defenses as in Title 76, Utah Criminal Code, including but not limited to
43     Chapter 2, Principles of Criminal Responsibility.]
44          (d) (i) Except as provided in Subsection (1)(d)(ii), "disqualifying homicide" means any
45     felony homicide offense described in Title 76, Chapter 5, Offenses Against the Person, for
46     which the elements are established by a preponderance of the evidence and by applying the
47     same principles of culpability and defenses described in Title 76, Utah Criminal Code.
48          (ii) "Disqualifying homicide" does not include an automobile homicide offense
49     described in Title 76, Chapter 5, Offenses Against the Person.
50          [(c)] (e) "Governing instrument" means a governing instrument executed by the
51     decedent.
52          [(d)] (f) "Killer" means [a person] an individual who commits a disqualifying
53     homicide.
54          [(e) "Revocable," with respect to a disposition, appointment, provision, or nomination,
55     means one under which the decedent, at the time of or immediately before death, was alone
56     empowered, by law or under the governing instrument, to cancel the designation, in favor of
57     the killer, whether or not the decedent was then empowered to designate himself in place of his
58     killer and whether or not the decedent then had capacity to exercise the power.]
59          (g) "Revocable" means a disposition, appointment, provision, or nomination under
60     which the decedent, at the time of or immediately before death, was alone empowered, by law
61     or under the governing instrument, to cancel the designation in favor of the killer regardless of
62     whether at the time or immediately before death:
63          (i) the decedent was empowered to designate the decedent in place of the decedent's
64     killer; or
65          (ii) the decedent had the capacity to exercise the power.
66          (2) (a) An individual who commits a disqualifying homicide of the decedent forfeits all
67     benefits under this chapter with respect to the decedent's estate, including an intestate share, an
68     elective share, an omitted spouse's or child's share, a homestead allowance, exempt property,
69     and a family allowance.
70          (b) If the decedent died intestate, the decedent's intestate estate passes as if the killer
71     disclaimed [his] the killer's intestate share.
72          (3) The killing of the decedent by means of a disqualifying homicide:
73          (a) revokes any revocable:
74          (i) disposition or appointment of property made by the decedent to the killer in a
75     governing instrument;
76          (ii) provision in a governing instrument conferring a general or nongeneral power of
77     appointment on the killer; and
78          (iii) nomination of the killer in a governing instrument, nominating or appointing the
79     killer to serve in any fiduciary or representative capacity, including a personal representative,
80     executor, trustee, or agent; and
81          (b) severs the interests of the decedent and killer in property held by them at the time of
82     the killing as joint tenants with the right of survivorship, transforming the interests of the
83     decedent and killer into tenancies in common.
84          (4) A severance under Subsection (3)(b) does not affect any third-party interest in
85     property acquired for value and in good faith reliance on an apparent title by survivorship in the
86     killer unless a writing declaring the severance has been noted, registered, filed, or recorded in
87     records appropriate to the kind and location of the property which are relied upon, in the
88     ordinary course of transactions involving such property, as evidence of ownership.
89          (5) Provisions of a governing instrument are given effect as if the killer disclaimed all
90     provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or
91     representative capacity, as if the killer predeceased the decedent.
92          (6) A wrongful acquisition of property or interest by one who kills another under
93     circumstances not covered by this section shall be treated in accordance with the principle that
94     [one who kills] a killer cannot profit from [his] the killer's wrong.
95          [(7) The court, upon the petition of an interested person, shall determine whether,
96     under the preponderance of evidence standard, the individual has committed a disqualifying
97     homicide of the decedent. If the court determines that, under that standard, the individual has
98     committed a disqualifying homicide of the decedent, the determination conclusively establishes
99     that individual as having committed a disqualifying homicide for purposes of this section,
100     unless the court finds that the act of disinheritance would create a manifest injustice. A
101     judgment of criminal conviction for a disqualifying homicide of the decedent, after all direct
102     appeals have been exhausted, conclusively establishes that the convicted individual has
103     committed the disqualifying homicide for purposes of this section.]
104          (7) (a) An interested person may petition the court to determine whether an individual
105     has committed a disqualifying homicide of the decedent.
106          (b) An individual has committed a disqualifying homicide of the decedent for purposes
107     of this section if:
108          (i) unless the court finds that disinheritance would create a manifest injustice, the court
109     finds that, by a preponderance of the evidence, the individual has committed a disqualifying
110     homicide of the decedent; or
111          (ii) the court finds that a judgment of conviction has been entered against the
112     individual for a disqualifying homicide of the decedent and all direct appeals for the judgment
113     have been exhausted.
114          (8) (a) Before a court determines whether an individual committed a disqualifying
115     homicide of the decedent under Subsection (7), the decedent's estate may petition the court to:
116          (i) enter a temporary restraining order, an injunction, or a temporary restraining order
117     and an injunction, to preserve the property or assets of the killer or the killer's estate;
118          (ii) require the execution of a trustee's bond under Section 75-7-702 for the killer's
119     estate;
120          (iii) establish a constructive trust on any property or assets of the killer or the killer's
121     estate that is effective from the time the killer's act caused the death of the decedent; or
122          (iv) take any other action necessary to preserve the property or assets of the killer or the
123     killer's estate:
124          (A) until a court makes a determination under Subsection (7); or
125          (B) for the payment of all damages and judgments for conduct resulting in the
126     disqualifying homicide of the decedent.
127          (b) Upon a petition for a temporary restraining order or an injunction under Subsection
128     (8)(a)(i), a court may enter a temporary restraining order against an owner's property in
129     accordance with Rule 65A of the Utah Rules of Civil Procedure, without notice or opportunity
130     of a hearing, if the court determines that:
131          (i) there is a substantial likelihood that the property is, or will be, necessary to satisfy a
132     judgment or damages owed by the killer for conduct resulting in the disqualifying homicide of
133     the decedent; and
134          (ii) notice of the hearing would likely result in the property being:
135          (A) sold, distributed, destroyed, or removed; and
136          (B) unavailable to satisfy a judgment or damages owed by the killer for conduct
137     resulting in the disqualifying homicide of the decedent.
138          [(8)] (9) (a) (i) A payor or other third party is not liable for having made a payment or
139     transferred an item of property or any other benefit to a beneficiary designated in a governing
140     instrument affected by a disqualifying homicide, or for having taken any other action in good
141     faith reliance on the validity of the governing instrument, upon request and satisfactory proof of
142     the decedent's death, before the payor or other third party received written notice of a claimed
143     forfeiture or revocation under this section.
144          (ii) A payor or other third party is liable for a payment made or other action taken after
145     the payor or other third party received written notice of a claimed forfeiture or revocation under
146     this section.
147          (b) (i) Written notice of a claimed forfeiture or revocation under Subsection [(8)] (9)(a)
148     shall be mailed to the payor's or other third party's main office or home by registered or
149     certified mail, return receipt requested, or served upon the payor or other third party in the
150     same manner as a summons in a civil action.
151          (ii) Upon receipt of written notice of a claimed forfeiture or revocation under this
152     section, a payor or other third party may pay any amount owed or transfer or deposit any item
153     of property held by [it] the payor or third party to or with:
154          (A) the court having jurisdiction of the probate proceedings relating to the decedent's
155     estate[, or]; or
156          (B) if no proceedings have been commenced, [to or with] the court having jurisdiction
157     of probate proceedings relating to the decedent's estates located in the county of the decedent's
158     residence.
159          (iii) The court shall hold the funds or item of property and, upon [its] the court's
160     determination under this section, shall order disbursement in accordance with the
161     determination.
162          (iv) Payments, transfers, or deposits made to or with the court discharge the payor or
163     other third party from all claims for the value of amounts paid to or items of property
164     transferred to or deposited with the court.
165          [(9)] (10) (a) A person who purchases property for value and without notice, or who
166     receives a payment or other item of property in partial or full satisfaction of a legally
167     enforceable obligation, is [neither]:
168          (i) not obligated under this section to return the payment, item of property, or benefit
169     [nor is]; and
170          (ii) not liable under this section for the amount of the payment or the value of the item
171     of property or benefit. [But]
172          (b) Notwithstanding Subsection (10)(a), a person who, not for value, receives a
173     payment, item of property, or any other benefit to which the person is not entitled under this
174     section is:
175          (i) obligated to return the payment, item of property, or benefit[, or is] to the person
176     who is entitled to the payment, property, or benefit under this section; and
177          (ii) personally liable for the amount of the payment or the value of the item of property
178     or benefit[,] to the person who is entitled to [it] the payment, property, or benefit under this
179     section.
180          [(b)] (c) If this section or any part of this section is preempted by federal law with
181     respect to a payment, an item of property, or any other benefit covered by this section, a person
182     who, not for value, receives the payment, item of property, or any other benefit to which the
183     person is not entitled under this section is:
184          (i) obligated to return the payment, item of property, or benefit[, or is] to the person
185     who would have been entitled to the payment, property, or benefit if this section or part were
186     not preempted; and
187          (ii) personally liable for the amount of the payment or the value of the item of property
188     or benefit, to the person who would have been entitled to [it were this section or part of this
189     section not preempted] the payment, property, or benefit if this section or part were not
190     preempted.
191          Section 2. Coordinating H.B. 314 with S.B. 124 and H.B. 29 -- Substantive
192     amendment.
193          If this H.B. 314, S.B. 124, Criminal Code Recodification Cross References, and H.B.
194     29, Driving Offenses Amendments, all pass and become law, the Legislature intends that the
195     Office of Legislative Research and General Counsel prepare the database for publication by
196     amending Subsection 75-2-803(1)(d) to read:
197          "(d)(i) Except as provided in Subsection (1)(d)(ii), "disqualifying homicide" means any
198     felony homicide offense described in Title 76, Chapter 5, Offenses Against the Individual, for
199     which the elements are established by a preponderance of the evidence and by applying the
200     same principles of culpability and defenses described in Title 76, Utah Criminal Code.
201          (ii) "Disqualifying homicide" does not include an offense for:
202          (A) negligently operating a vehicle resulting in death, as described in Section 76-5-207;
203     and
204          (B) automobile homicide involving using a handheld wireless communication device
205     while driving, as described in Section 76-5-207.5."