2016 Colorado Revised Statutes
Title 15 - Probate, Trusts, and Fiduciaries
Colorado Probate Code
Article 11 - Intestate Succession and Wills
Part 7 - Rules of Construction Applicable to Wills and Other Governing Instruments
§ 15-11-702. Requirement of survival by one hundred twenty hours

CO Rev Stat ยง 15-11-702 (2016) What's This?

(1) Requirement of survival by one hundred twenty hours under probate code. For the purposes of this code, except as provided in subsection (4) of this section, an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed to have predeceased the event.

(2) Requirement of survival by one hundred twenty hours under other governing instrument. Except as provided in subsection (4) of this section, for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by one hundred twenty hours is deemed to have predeceased the event.

(3) Co-owners with right of survivorship; requirement of survival by one hundred twenty hours. Except as provided in subsection (4) of this section, if (i) it is not established by clear and convincing evidence that one of two co-owners with right of survivorship survived the other co-owner by one hundred twenty hours, one-half of the property passes as if one had survived by one hundred twenty hours and one-half as if the other had survived by one hundred twenty hours, and (ii) there are more than two co-owners and it is not established by clear and convincing evidence that at least one of them survived the others by one hundred twenty hours, the property passes in the proportion that one bears to the whole number of co-owners. For the purposes of this subsection (3), "co-owners with right of survivorship" includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of one or more of the others.

(4) Exceptions. Survival by one hundred twenty hours is not required if:

(a) The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and if that language is operable under the facts of the case;

(b) The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period; but survival of the event or the specified period shall be established by clear and convincing evidence;

(c) The imposition of a one-hundred-twenty-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under section 15-11-1102 (1) (a), (2) (a), or (3) (a) or section 15-11-1102.5 (1) (b) (I), (1) (b) (II), (1) (b) (III), (2) (b) (I) (A), (2) (b) (II) (A), or (2) (b) (III) (A), or to become invalid under section 15-11-1102 (1) (b), (2) (b), or (3) (b) or section 15-11-1102.5 (1) (b) (I), (1) (b) (II), or (1) (b) (III); but survival shall be established by clear and convincing evidence; or

(d) The application of a one-hundred-twenty-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition; but survival shall be established by clear and convincing evidence.

(5) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument who, under this section, is not entitled to the payment or item of property, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party received written notice as described in paragraph (b) of this subsection (5). A payor or other third party shall have no duty or obligation to inquire as to the application of the one-hundred-twenty-hour survival or to seek any evidence with respect to any such survival. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (5) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument.

(b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that the beneficiary designated in the governing instrument failed to survive the decedent by one hundred twenty hours. The written notice shall 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 the payor or other third party shall not constitute notice to the payor or other third party.

(c) Upon receipt of the written notice described in paragraph (b) of this subsection (5), a payor or other third party may pay to the court any amount owed, or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court.

(d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court.

(e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section.

(6) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section.

(b) If this section or any part of this section is preempted by federal law (other than the federal "Employee Retirement Income Security Act of 1974", as amended) with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted.

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