2023 New York Laws › EPT - Estates, Powers and Trusts › Article 2 - Rules Governing Dispositions Subject to This Law › Part 1 - Substantive Rules Governing Dispositions › 2-1.6 - Disposition of Property Where a Person Dies Within One Hundred Twenty Hours of Another Person or Any Other Event.

§ 2-1.6 Disposition  of  property where a person dies within one hundred
twenty hours of another person or any other event
(a) Except as provided in paragraph (b) of this section:
(1) Where, under articles 4 and  5  of  this  chapter,  the  title  to
property  or  the  devolution  of  property depends upon an individual's
survivorship of the death of another individual, an  individual  who  is
not  established  by  clear and convincing evidence to have survived the
other  individual  by  one  hundred  twenty  hours  is  deemed  to  have
predeceased the other individual.
(2) 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)  Where  a disposition of property under a governing instrument (i)
depends upon the time of death of two or more  beneficiaries  designated
to  take  alternatively  by  reason of surviving an event, including the
death of another individual, and (ii) it is not established by clear and
convincing evidence that such beneficiaries have survived the  event  by
one hundred twenty hours, the property thus disposed of shall be divided
into  as  many equal portions as there are alternative beneficiaries and
such portions shall be distributed respectively to those who would  have
taken  the  whole  property in the event that the designated beneficiary
through whom they take had survived.
(4) Where 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. Where 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.
(b)  The  survival requirements of paragraph (a) of this section shall
not apply if:
(1) The governing instrument contains language dealing explicitly with
simultaneous deaths or deaths in a common disaster and that language  is
operable under the facts of the case.
(2) 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 for a specified period. However,  survival  of  the
event  or  the  specified  period  must  be  established  by  clear  and
convincing evidence.
(3) The  imposition  of  a  one  hundred  twenty-hour  requirement  of
survival  would  cause  a  nonvested  property  interest  or  a power of
appointment to be invalid under section 9-1.1 of this chapter.  However,
survival must be established by clear and convincing evidence.
(4)  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.  However,  survival  must  be
established by clear and convincing evidence.
(5)  Its  application would result in a taking of the intestate estate
by the state.
(6) The surviving spouse exercised the right of election under section
5-1.1-A of this chapter, but died less than  one  hundred  twenty  hours
after the death of the deceased spouse.
(c) For purposes of this section, "governing instrument" means a deed,
will,  trust,  insurance  or annuity policy, bank account in trust form,
security   registration   in   beneficiary    form
(TOD),    pension,
profit-sharing, retirement, or similar benefit plan, instrument creating
or  exercising  a  power  of  appointment  or  a power of attorney, or a
dispositive, appointive, or nominative instrument of any similar type.