February 14, 2008, Introduced by Senators ALLEN, JELINEK, HARDIMAN and BIRKHOLZ and referred to the Committee on Senior Citizens and Veterans Affairs.
A bill to amend 1998 PA 386, entitled
"Estates and protected individuals code,"
by amending sections 2802, 2803, and 2804 (MCL 700.2802, 700.2803,
and 700.2804).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 2802. As used in this section and sections 2803 and 2804:
(a) "Abuse, neglect, or exploitation" means either of the
following:
(i) An intentional act, the commission of which is a felony,
prohibited under chapter XXA of the Michigan penal code, 1931 PA
328, MCL 750.145m to 750.145r.
(ii) A violation of section 174a of the Michigan penal code,
1931 PA 328, MCL 750.174a.
(b) "Abuser" means the individual who committed the abuse,
neglect, or exploitation.
(c) (a)
"Disposition or appointment of property" includes, but
is not limited to, a transfer of an item of property or another
benefit to a beneficiary designated in a governing instrument.
(d) (b)
"Governing instrument" means a governing instrument
executed by the decedent.
(e) (c)
"Revocable" means, with respect to a disposition,
appointment, provision, or nomination, one under which the
decedent, at the time of or immediately before death, was alone
empowered, by law or under the governing instrument, to cancel the
designation in favor of the killer or abuser, whether or not the
decedent was then empowered to designate himself or herself in
place of his or her killer or abuser and whether or not the
decedent then had the capacity to exercise the power.
Sec. 2803. (1) An individual who feloniously and intentionally
kills or who commits an act of abuse, neglect, or exploitation with
respect to the decedent forfeits all benefits under this article
with respect to the decedent's estate, including an intestate
share, an elective share, an omitted spouse's or child's share, a
homestead allowance, a family allowance, and exempt property. If
the decedent died intestate, the decedent's intestate estate passes
as if the killer or abuser disclaimed his or her intestate share.
(2) The felonious and intentional killing or the abuse,
neglect, or exploitation of the decedent does all of the following:
(a) Revokes all of the following that are revocable:
(i) Disposition or appointment of property made by the decedent
to the killer or abuser in a governing instrument.
(ii) Provision in a governing instrument conferring a general
or nongeneral power of appointment on the killer or abuser.
(iii) Nomination of the killer or abuser in a governing
instrument, nominating or appointing the killer or abuser to serve
in a fiduciary or representative capacity, including a personal
representative, executor, trustee, or agent.
(b) Severs the interests of the decedent and killer or abuser
in property held by them at the time of the killing, abuse,
neglect, or exploitation as joint tenants with the right of
survivorship, transforming the interests of the decedent and killer
or abuser into tenancies in common.
(3) A severance under subsection (2)(b) does not affect a
third party interest in property acquired for value and in good
faith reliance on an apparent title by survivorship in the killer
or abuser unless a writing declaring the severance has been noted,
registered, filed, or recorded in records appropriate to the kind
and location of the property that are relied upon, in the ordinary
course of transactions involving that type of property, as evidence
of ownership.
(4) A provision of a governing instrument is given effect as
if the killer or abuser disclaimed all provisions revoked by this
section or, in the case of a revoked nomination in a fiduciary or
representative capacity, as if the killer or abuser predeceased the
decedent.
(5) A killer's or abuser's wrongful acquisition of property or
interest not covered by this section shall be treated in accordance
with the principle that a killer or abuser cannot profit from his
or her wrong.
(6) After all right to appeal has been exhausted, a judgment
of conviction establishing criminal accountability for the
felonious and intentional killing or the abuse, neglect, or
exploitation of the decedent conclusively establishes the convicted
individual as the decedent's killer or abuser, as applicable, for
purposes of this section. In the absence of a conviction, the
court, upon the petition of an interested person, shall determine
whether, under the preponderance of evidence standard, the
individual would be found criminally accountable for the felonious
and intentional killing or abuse, neglect, or exploitation of the
decedent. If the court determines that, under that standard, the
individual would be found criminally accountable for the felonious
and intentional killing or abuse, neglect, or exploitation of the
decedent, the determination conclusively establishes that
individual as the decedent's killer or abuser for purposes of this
section.
Sec. 2804. (1) Except as otherwise provided in this section, a
payor or other third party is not liable for having made a payment
or transferred an item of property or another benefit to a
beneficiary designated in a governing instrument affected by an
intentional and felonious killing or by abuse, neglect, or
exploitation, or for having taken another action in reliance on the
validity of the governing instrument, upon request and satisfactory
proof of the decedent's death. A payor or other third party is
liable for a payment made or other action taken 3 or more business
days after the payor or other third party actually receives written
notice of a claimed forfeiture or revocation under section 2803. A
payor or other third party is not obligated to determine whether
the decedent was the victim of felonious killing or abuse, neglect,
or exploitation or to seek evidence relating to such a killing or
abuse, neglect, or exploitation even if the circumstances of the
decedent's death are suspicious as to the beneficiary's
participation in such a killing or if there is evidence that would
raise suspicions that the decedent was the victim of abuse,
neglect, or exploitation by the beneficiary. A recipient who
incorrectly receives a payment, transfer of property, or other
benefit is liable for the payment or transfer received, whether or
not written notice of the claim is given.
(2) Written notice of a claimed forfeiture or revocation under
subsection (1) must be mailed to the payor's or other third party's
main office or home by registered or certified mail, return receipt
requested, or served upon the payor or other third party in the
same manner as a summons in a civil action. Notice to a sales
representative of a payor or other third party does not constitute
notice to the payor or other third party.
(3) The written notice under subsection (1) must include the
decedent's name, the name of the person asserting an interest, the
nature of the payment, item of property, or other benefit, and a
statement that a claim of forfeiture or revocation is being made
under section 2803. Notice in a form or service in a manner other
than that described in this section does not impose liability on a
payor or other third party for an action taken in accordance with a
governing instrument.
(4) Upon receipt of written notice of a claimed forfeiture or
revocation under this section, a payor or other third party may pay
an amount owed to the county treasurer of the county of the court
having jurisdiction of the probate proceedings relating to the
decedent's estate or, if no proceedings have been commenced, to the
county treasurer of the county of the decedent's residence. With a
payment under this section, the payor or other third party shall
file a copy of the written notice received by the payor or other
third party. A payment made to the county treasurer discharges the
payor or other third party from a claim for the value of an amount
paid to the county treasurer.
(5) The county treasurer shall not charge a filing fee for a
payment to the county treasurer under this section. The county
treasurer shall hold the money in accordance with section 3917 and,
upon the court's determination under section 2803, shall disburse
the money in accordance with the determination.
(6) The provision for payment to the county treasurer under
this section does not preclude a payor or other third party from
taking another action authorized by law or the governing
instrument.