Connecticut Seal

General Assembly

 

Raised Bill No. 6889

January Session, 2005

 

LCO No. 4335

 

*04335_______JUD*

Referred to Committee on Judiciary

 

Introduced by:

 

(JUD)

 

AN ACT CONCERNING THE ELECTIVE SHARE OF A SURVIVING SPOUSE OF A DECEDENT.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective October 1, 2005) (a) The surviving spouse of a decedent who dies domiciled in this state on or after the effective date of this section has a right of election, under the limitations and conditions stated in sections 1 to 8, inclusive, of this act, to take an elective share amount not greater than one-half of the value of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:

T1

If the decedent and the spouse were married to each other:

The elective share percentage is:

T2

   

T3

Less than 1 year

Supplemental amount only

T4

1 year but less than 2 years

5% of the augmented estate

T5

2 years but less than 3 years

10% of the augmented estate

T6

3 years but less than 4 years

15% of the augmented estate

T7

4 years but less than 5 years

20% of the augmented estate

T8

5 years but less than 6 years

25% of the augmented estate

T9

6 years but less than 7 years

30% of the augmented estate

T10

7 years but less than 8 years

35% of the augmented estate

T11

8 years but less than 9 years

40% of the augmented estate

T12

9 years but less than 10 years

45% of the augmented estate

T13

10 years or more

50% of the augmented estate

(b) If the sum of the amounts described in subdivision (4) of subsection (b) of section 2 of this act, subdivision (1) of subsection (a) of section 3 of this act, and that part of the elective share amount payable from the decedent's probate estate and nonprobate transfers to others under subsections (b) and (c) of section 3 of this act is less than fifty thousand dollars, the surviving spouse is entitled to a supplemental elective share amount equal to fifty thousand dollars, minus the sum of the amounts described in said sections. The supplemental elective share amount is payable from the decedent's probate estate and from recipients of the decedent's nonprobate transfers to others in the order of priority set forth in subsections (b) and (c) of section 3 of this act.

(c) If the right of election is exercised by or on behalf of the surviving spouse, the surviving spouse's exempt property and family allowance, if any, are not charged against but are in addition to the elective share and supplemental elective share amounts.

(d) The right, if any, of the surviving spouse of a decedent who dies domiciled outside this state to take an elective share in property in this state is governed by the law of the decedent's domicile at death.

Sec. 2. (NEW) (Effective October 1, 2005) (a) As used sections 1 to 8, inclusive, of this act, unless the context otherwise requires:

(1) "Bona fide purchaser" means a purchaser for value in good faith and without notice of an adverse claim;

(2) "Decedent's nonprobate transfers to others" means the decedent's nonprobate transfers to persons, other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate or estate creditors, that are included in the augmented estate under subdivision (2) of subsection (b) of this section;

(3) "Fractional interest in property held in joint tenancy with the right of survivorship", whether the fractional interest is unilaterally severable or not, means the fraction, the numerator of which is one and the denominator of which, if the decedent was a joint tenant, is one plus the number of joint tenants who survive the decedent and which, if the decedent was not a joint tenant, is the number of joint tenants;

(4) "Marriage", as it relates to a transfer by the decedent during marriage, means any marriage of the decedent to the decedent's surviving spouse;

(5) "Multiple-party account" means an account payable on request to one or more of two or more parties, whether or not a right of survivorship is mentioned;

(6) "Nonadverse party" means a person who does not have a substantial beneficial interest in the trust or other property arrangement that would be adversely affected by the exercise or nonexercise of the power that he or she possesses respecting the trust or other property arrangement. A person having a general power of appointment over property is deemed to have a beneficial interest in the property;

(7) "Power" or "power of appointment" includes a power to designate the beneficiary of a beneficiary designation, including beneficiary designations under individual retirement accounts and annuities described in Section 408 of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, as well as other pension plans or arrangements not subject to Part 2 of the federal Employee Retirement Income Security Act of 1974, as from time to time amended;

(8) "Presently exercisable general power of appointment" means a power of appointment under which, at the time in question, the decedent, whether or not he or she then had the capacity to exercise the power, held a power to create a present or future interest in himself or herself, his or her creditors, his or her estate, or the creditors of his or her estate, and includes a power to revoke or invade the principal of a trust or other property arrangement;

(9) "Probate estate" means property, whether real or personal, movable or immovable, wherever situated, that would pass by intestate succession if the decedent died without a valid will;

(10) "Transfer", as it relates to a transfer by, or on behalf of, the decedent, includes: (A) An exercise or release of a presently exercisable general power of appointment held by the decedent; (B) a lapse at death of a presently exercisable general power of appointment held by the decedent; and (C) an exercise, release or lapse of a presently exercisable general power of appointment that the decedent created in himself or herself and of a power described in subparagraph (B)(ii) of subdivision (2) of subsection (b) of this section that the decedent conferred on a nonadverse party; and

(11) "Value", unless otherwise indicated in this section, means fair market value as of the decedent's date of death.

(b) The augmented estate consists of the sum of:

(1) The value of the decedent's probate estate, reduced by funeral and administrative expenses, family allowance, exempt property and enforceable claims;

(2) The value of the decedent's nonprobate transfers to others, which are composed of all property, whether real or personal, movable or immovable, wherever situated, not included in the decedent's probate estate, of any of the following types:

(A) Property of any of the following types that passed outside probate at the decedent's death:

(i) Property over which the decedent alone, immediately before death, held or retained a presently exercisable general power of appointment; the amount included is the value of the property subject to the power, to the extent that the property passed at the decedent's death, by exercise, release, lapse, in default or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse, except that property over which the decedent had only a testamentary power of appointment is not included. Property over which the decedent had a general inter vivos power of appointment or withdrawal created in the decedent by a third party is includable unless the governing instrument contains a provision for its termination or lapse, in full or in part, during the life of the decedent. For the purposes of this clause, "termination", with respect to a power described in this clause, means that the power terminated by exercise or release, but not by lapse or in default or otherwise;

(ii) The decedent's fractional interest in property held by the decedent in joint tenancy with the right of survivorship; the amount included is the value of the decedent's fractional interest, to the extent that the fractional interest passed by right of survivorship at the decedent's death to a surviving joint tenant other than the decedent's surviving spouse;

(iii) The decedent's ownership interest in multiple-party accounts and property or accounts held in POD or TOD, as provided in section 45a-468e of the general statutes, or coownership registration with the right of survivorship; the amount included is the value of the decedent's ownership interest, to the extent that the decedent's ownership interest passed at the decedent's death to or for the benefit of any person other than the decedent's estate or surviving spouse; or

(iv) Except as provided in subdivision (2) of subsection (c) of this section, proceeds of insurance, including accidental death benefits, on the life of the decedent, if the decedent owned the insurance policy immediately before death or if and to the extent that the decedent alone and immediately before death held a presently exercisable general power of appointment over the policy or its proceeds; the amount included is the value of the proceeds, to the extent that they were payable at the decedent's death to or for the benefit of the decedent's estate or surviving spouse;

(B) Property transferred in any of the following forms by the decedent during marriage:

(i) Any irrevocable transfer in which the decedent retained the right to the possession or enjoyment of, or to the income from, the property if and to the extent that the decedent's right terminated at or continued beyond the decedent's death; the amount included is the value of the fraction of the property to which the decedent's right related, to the extent that the fraction of the property passed outside probate to or for the benefit of any person other than the decedent's estate or surviving spouse; or

(ii) Any transfer in which the decedent created a power over the income or principal of the transferred property, exercisable by the decedent alone or in conjunction with any other person, or exercisable by a nonadverse party, for the benefit of the decedent, the decedent's creditors, the decedent's estate or the creditors of the decedent's estate; the amount included is the value of the property subject to the power, to the extent that the power was exercisable at the decedent's death to or for the benefit of any person other than the decedent's surviving spouse or to the extent that the property subject to the power passed at the decedent's death, by exercise, release, lapse, in default or otherwise, to or for the benefit of any person other than the decedent's estate or surviving spouse; and

(C) Property transferred during marriage and during the two-year period next preceding the decedent's death as a result of a transfer by the decedent if the transfer was of any of the following types:

(i) Any property that passed as a result of the termination of a right or interest in, or power over, property that would have been included in the augmented estate under subparagraph (A)(i), (ii) or (iii) of this subdivision, or under subparagraph (B) of this subdivision, if the right, interest or power had not terminated until the decedent's death; the amount included is the value of the property that would have been included under subparagraph (A)(i), (ii) or (iii) or subparagraph (B) of this subdivision, except that the property is valued at the time that the right, interest or power terminated, and is included only to the extent that the property passed upon termination to or for the benefit of any person other than the decedent or the decedent's estate, spouse or surviving spouse. For the purposes of this clause, "termination", with respect to a right or interest in property, means that the right or interest terminated by the terms of the governing instrument or that the decedent transferred or relinquished the right or interest, and, with respect to a power over property, means that the power terminated by exercise, release, lapse, in default or otherwise;

(ii) Any transfer of, or relating to, an insurance policy on the life of the decedent if the proceeds would have been included in the augmented estate under subparagraph (A)(iv) of this subdivision had the transfer not occurred; the amount included is the value of the insurance proceeds to the extent that the proceeds were payable at the decedent's death to or for the benefit of the decedent's estate or surviving spouse; or

(iii) Any transfer of property, to the extent not otherwise included in the augmented estate, made to or for the benefit of a person other than the decedent's surviving spouse; the amount included is the value of the transferred property to the extent that the aggregate transfers to any one donee in either of the two years exceeded ten thousand dollars;

(3) The value of the decedent's nonprobate transfers to the decedent's surviving spouse, which are composed of all property that passed outside probate at the decedent's death from the decedent to the surviving spouse by reason of the decedent's death, including (A) the decedent's fractional interest in property held as a joint tenant with the right of survivorship, to the extent that the decedent's fractional interest passed to the surviving spouse as surviving joint tenant, (B) the decedent's ownership interest in multiple-party accounts and property or accounts held in POD or TOD, as provided in section 45a-468e of the general statutes, or coownership registration with the right of survivorship, to the extent the decedent's ownership interest passed to the surviving spouse as surviving coowner, and (C) all other property that would have been included in the augmented estate under subparagraph (A) or (B) of subdivision (2) of this subsection had it passed to or for the benefit of a person other than the decedent's spouse, surviving spouse, the decedent, or the decedent's creditors, estate or estate creditors, but excluding property passing to the surviving spouse under the federal Social Security System; and

(4) To the extent not included in or expressly excluded from the augmented estate under subdivision (1) or (2) of this subsection, the value of:

(A) Property that was owned by the decedent's surviving spouse at the decedent's death, including:

(i) The surviving spouse's fractional interest in property held in joint tenancy with the right of survivorship;

(ii) The surviving spouse's ownership interest in multiple-party accounts and property or accounts held in POD or TOD, as provided in section 45a-468e of the general statutes, or coownership registration with the right of survivorship; and

(iii) Property that passed to the surviving spouse by reason of the decedent's death; and

(B) Property that would have been included in the surviving spouse's nonprobate transfers to others, other than the spouse's fractional and ownership interests included under subparagraph (A)(i) and (ii) of this subdivision, had the spouse been the decedent. Property included under this subdivision is valued at the decedent's death, taking the fact that the decedent predeceased the spouse into account, except that, for the purposes of subparagraph (A)(i) and (ii) of this subdivision, the values of the spouse's fractional and ownership interests are determined immediately before the decedent's death if the decedent was then a joint tenant or a coowner of the property or accounts. For the purposes of this subparagraph, proceeds of insurance that would have been included in the spouse's nonprobate transfers to others under subparagraph (A)(iv) of subdivision (2) of this subsection are not valued as if he or she were deceased. The value of property included under this subdivision is reduced in each category by enforceable claims against the included property and is reduced by enforceable claims against the surviving spouse.

(c) Notwithstanding the provisions of subsection (b) of this section, the following exclusions shall control:

(1) The value of any property is excluded from the decedent's nonprobate transfers to others (A) to the extent the decedent received adequate and full consideration in money or money's worth for a transfer of the property; (B) if the property was transferred with the written joinder of, or if the transfer was consented to in writing by, the surviving spouse; or (C) if the property was transferred to a bona fide purchaser. For the purposes of this section, in the absence of a finding of a contrary intent, joinder in the filing of a gift tax return does not constitute consent or joinder.

(2) Any life insurance maintained pursuant to a marriage dissolution settlement agreement or court order or any distribution from a plan qualified under Section 401(a) of the Internal Revenue Code of 1986, or any subsequent corresponding internal revenue code of the United States, as from time to time amended, is excluded from the decedent's nonprobate transfers to others to the extent such items are payable to a person other than the surviving spouse.

(3) Life insurance, accident insurance, pension, profit sharing, retirement and other benefit plans payable to persons other than the decedent's surviving spouse or the decedent's estate are excluded from the augmented estate.

(4) Any completed transfers made by the decedent prior to the effective date of this section are excluded from the decedent's nonprobate transfers to others.

(5) The decedent's fractional interest in real property held in joint tenancy with the right of survivorship, if such joint tenancy was created by a transfer by the decedent prior to marriage to the surviving spouse, is excluded from the decedent's nonprobate transfers to others.

(6) The decedent's fractional interest in real property held in joint tenancy with the right of survivorship, if such joint tenancy was created by a transfer by someone other than the decedent or by someone other than the surviving spouse, is excluded from the decedent's nonprobate transfers to others.

(7) The surviving spouse's fractional interest in real property held in joint tenancy with the right of survivorship, if such joint tenancy was created by a transfer by someone other than the decedent or by someone other than the surviving spouse, is excluded from the augmented estate.

(8) Except with respect to joint tenancies between the surviving spouse and the decedent, the surviving spouse's fractional interest in real property held in joint tenancy with the right of survivorship, if such joint tenancy was created by a transfer by the surviving spouse prior to marriage to the decedent, is excluded from the augmented estate.

(d) The value of property includes the commuted value of any present or future interest and the commuted value of amounts payable under any trust, life insurance settlement option, annuity contract, public or private pension, disability compensation, death benefit or retirement plan, or any similar arrangement, exclusive of the federal Social Security System.

(e) In case of overlapping application to the same property referred to in subparagraph (A)(i), (ii) or (iii) or subparagraph (B) of subdivision (2) of subsection (b) of this section, the property is included in the augmented estate under the provision yielding the highest value, but under any one, but only one, of the overlapping provisions if they all yield the same value.

Sec. 3. (NEW) (Effective October 1, 2005) (a) In a proceeding for an elective share, the following are applied first to satisfy the elective share amount and to reduce or eliminate any contributions due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others:

(1) Amounts included in the augmented estate under subdivision (1) of subsection (b) of section 2 of this act which pass or have passed to the surviving spouse by testate or intestate succession and amounts included in the augmented estate under subdivision (3) of subsection (b) of section 2 of this act. For the purposes of this subdivision, if the surviving spouse disclaims any property, including interests in trust created by the decedent, such property shall not be applied under this subdivision to the extent that such property passes to a person other than the surviving spouse;

(2) Amounts included in the augmented estate under subdivision (4) of subsection (b) of section 2 of this act up to the applicable percentage thereof. For the purposes of this subdivision, "applicable percentage" means twice the elective share percentage set forth in the schedule in subsection (a) of section 1 of this act appropriate to the length of time the spouse and the decedent were married to each other.

(b) If, after the application of subsection (a) of this section, the elective share amount is not fully satisfied or the surviving spouse is entitled to a supplemental elective share amount, amounts included in the decedent's probate estate and in the decedent's nonprobate transfers to others, other than amounts included under subparagraph (C)(i) or (iii) of subdivision (2) of subsection (b) of section 2 of this act, are applied first to satisfy the unsatisfied balance of the elective share amount or the supplemental elective share amount. The decedent's probate estate and that portion of the decedent's nonprobate transfers to others are so applied that liability for the unsatisfied balance of the elective share amount or for the supplemental elective share amount is equitably apportioned among the recipients of the decedent's probate estate and of that portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

(c) If, after the application of subsections (a) and (b) of this section, the elective share or supplemental elective share amount is not fully satisfied, the remaining portion of the decedent's nonprobate transfers to others is so applied that liability for the unsatisfied balance of the elective share or supplemental elective share amount is equitably apportioned among the recipients of that remaining portion of the decedent's nonprobate transfers to others in proportion to the value of their interests therein.

Sec. 4. (NEW) (Effective October 1, 2005) (a) Only original recipients of the decedent's nonprobate transfers to others, and the donees of the recipients of the decedent's nonprobate transfers to others, to the extent the donees have the property or its proceeds, are liable to make a proportional contribution toward satisfaction of the surviving spouse's elective share or supplemental elective share amount. A person liable to make contribution may choose to give up the proportional part of the decedent's nonprobate transfers to him or her or to pay the value of the amount for which he or she is liable.

(b) If any provision of sections 1 to 8, inclusive, of this act is preempted by any federal law, other than the federal Employee Retirement Income Security Act of 1974, as from time to time amended, with respect to a payment, an item of property or any other benefit included in the decedent's nonprobate transfers to others, a person, other than a bona fide purchaser, who receives such payment, item of property or benefit is obligated to return such payment, item of property or benefit, or is personally liable for the amount of such payment or the value of such item of property or benefit, as provided in section 3 of this act, to the person who would have been entitled to it were such provision not preempted.

(c) A bona fide purchaser who purchases property from a recipient or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation is neither obligated under sections 1 to 8, inclusive, of this act to return the payment, item of property or benefit nor liable under sections 1 to 8, inclusive, of this act for the amount of the payment or the value of the item of property or benefit.

Sec. 5. (NEW) (Effective October 1, 2005) (a) Except as provided in subsection (b) of this section, the election shall be made by filing in the probate court having jurisdiction of the decedent's estate, and mailing or delivering to the personal representative, if any, a petition for the elective share within nine months after the date of the decedent's death, or within six months after the decedent's will is admitted to probate, whichever limitation expires later. The surviving spouse shall serve a copy of the petition for the elective share on, and shall give written notice of the time and place set for hearing to, persons interested in the estate and to the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective share.

(b) Within nine months after the decedent's death, the surviving spouse may petition the court for an extension of time for making an election. If, within nine months after the decedent's death, the spouse gives notice of the petition to all persons interested in the decedent's nonprobate transfers to others, the court, for cause shown by the surviving spouse, may extend the time for election.

(c) The surviving spouse may withdraw his or her demand for an elective share at any time before entry of a final determination by the court. Written notice of such withdrawal shall be given to persons interested in the estate and the distributees and recipients of portions of the augmented estate whose interests may be adversely affected by the taking of the elective share.

(d) After notice and hearing, the court shall determine the elective share and supplemental elective share amounts, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under sections 3 and 4 of this act. If it appears that a fund or property included in the augmented estate has not come into the possession of the personal representative, or has been distributed by the personal representative, the court nevertheless shall fix the liability of any person who has any interest in the fund or property or who has possession thereof, whether as trustee or otherwise. The proceeding may be maintained against fewer than all persons against whom relief could be sought, but no person is subject to contribution in any greater amount than he or she would have been under sections 3 and 4 of this act had relief been secured against all persons subject to contribution.

(e) An order or judgment of the court may be enforced as necessary in suit for contribution or payment in other courts of this state or other jurisdictions.

Sec. 6. (NEW) (Effective October 1, 2005) (a) The right of election may be exercised only by a surviving spouse who is living when the petition for the elective share is filed in the probate court having jurisdiction of the decedent's estate under subsection (a) of section 5 of this act. If the election is not exercised by the surviving spouse personally, it may be exercised on the surviving spouse's behalf by his or her conservator, guardian or agent under the authority of a power of attorney.

(b) If the election is exercised on behalf of a surviving spouse who is an incapacitated person, the court shall set aside that portion of the elective share and supplemental elective share amounts due from the decedent's probate estate and recipients of the decedent's nonprobate transfers to others under subsections (b) and (c) of section 3 of this act and shall appoint a trustee to administer such property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by an agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee shall administer the trust in accordance with the following terms and such additional terms as the court determines appropriate:

(1) Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.

(2) During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust, and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination.

(3) Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (A) Under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if such predeceased spouse died immediately after the surviving spouse; or (B) to such predeceased spouse's heirs.

Sec. 7. (NEW) (Effective October 1, 2005) (a) The rights of election of a surviving spouse and the rights of the surviving spouse to exempt property, family allowance and the decedent's homestead exemption may be waived, wholly or partially, before or after marriage, by a writing signed by the waiving party after fair disclosure. Unless the writing provides to the contrary, a waiver of "all rights upon death", or equivalent language, in the property or estate of a present or prospective spouse is:

(1) A waiver of all rights to elective share, exempt property, family allowance and the decedent's homestead exemption by the waiving party in the property of the other;

(2) A waiver of the statutory priority of the waiving party to serve as personal representative, executor or administrator of the estate of the other; and

(3) A renunciation and disclaimer by the waiving party of all benefits that would otherwise pass to him or her from the other by intestate succession or by virtue of the provisions of any will executed before the writing. Provisions of a will executed before the writing are given effect as if the waiving party:

(A) Disclaimed all interests passing to him or her under the will; and

(B) Became disqualified to serve as personal representative, executor, administrator or trustee.

(b) A surviving spouse's waiver is not enforceable if such waiver would not be enforceable under section 46b-36g of the general statutes.

(c) In addition to all other available procedures, a person may revoke all benefits that would otherwise pass upon death by virtue of the provisions of any will executed before the revocation to relatives of such person's spouse, wholly or partially, before or after marriage, by a writing signed by the revoking party. Unless the writing provides to the contrary, a revocation of "all benefits passing upon death to the relatives of my spouse", or equivalent language, is a revocation of all benefits that would otherwise pass upon death to the relatives of the spouse from the revoking party by virtue of the provisions of any will executed before the writing. Provisions of a will executed before the writing are given effect as if the relatives:

(1) Disclaimed all interests passing to them under the will; and

(2) Became disqualified to serve as personal representative, executor, administrator or trustee.

(d) For the purposes of this section, "relative" of an individual's spouse means a person who is related to the spouse by blood, adoption or affinity and who, if the individual and the individual's spouse were divorced, would not be related to the individual by blood, adoption or affinity.

(e) The provisions of this section shall apply only to waivers and revocations that are executed on or after the effective date of this section.

Sec. 8. (NEW) (Effective October 1, 2005) (a) Notwithstanding that, under sections 1 to 8, inclusive, of this act, a payment, item of property or other benefit is included in the decedent's nonprobate transfers to others, a payor or other third party is not liable for having made such payment or transferred such item of property or other benefit to a beneficiary designated in a governing instrument, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, upon request and satisfactory proof of the decedent's death, before the payor or other third party has received written notice as described in subsection (b) of this section. 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 subsection (b) of this section 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 provided under this section shall indicate the name of the decedent, the name of the surviving spouse, the nature of the payment, item of property or other benefit, and a statement that the surviving spouse intends to file a petition for the elective share or that a petition for the elective share has been filed. 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 subsection (b) of this section, a payor or other third party may pay to the probate court having jurisdiction of the decedent's estate any amount owed, or transfer to or deposit with the court any item of property held, by such payor or third party. 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. 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 for the 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 paid or item of property transferred under subsection (c) of this section and, upon its determination under subsection (d) of section 5 of this act, shall order disbursement in accordance with the determination. If no petition is filed in the court within the time specified under subsection (a) of section 5 of this act, or, if filed, the demand for an elective share is withdrawn under subsection (c) of section 5 of this act, the court shall order disbursement to the designated beneficiary in the governing instrument. 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.

Sec. 9. Subsection (c) of section 45a-257a of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

(c) A surviving spouse receiving a share under this section may not elect to take a statutory share under section 45a-436, as amended by this act. The provisions of this section shall apply to estates of persons dying prior to the effective date of this section.

Sec. 10. Subsection (h) of section 45a-436 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

(h) The provisions of this section shall apply to estates of [all] persons dying on or after July 1, 1985, and prior to the effective date of this section.

Sec. 11. Section 46b-36 of the general statutes is repealed and the following is substituted in lieu thereof (Effective October 1, 2005):

Neither husband nor wife shall acquire by the marriage any right to or interest in any property held by the other before or acquired after such marriage, except as to the share of the survivor in the property as provided [by] in sections 45a-436, as amended by this act, and 45a-437 or the elective share of the survivor in the property as provided in sections 1 to 8, inclusive, of this act. The separate earnings of the wife shall be her sole property. She shall have power to make contracts with her husband or with third persons, to convey to her husband or to third persons her real and personal estate and to receive conveyances of real and personal estate from her husband or from third persons as if unmarried. She may bring suit in her own name upon contracts or for torts and she may be sued for a breach of contract or for a tort; and her property, except such as is exempt by law, may be taken on attachment and execution, but shall not be taken for the debts of her husband, except as provided in section 46b-37. The husband shall not be liable for her debts contracted before marriage, [nor] or upon her contracts made after marriage, except as provided in said section.

This act shall take effect as follows and shall amend the following sections:

Section 1

October 1, 2005

New section

Sec. 2

October 1, 2005

New section

Sec. 3

October 1, 2005

New section

Sec. 4

October 1, 2005

New section

Sec. 5

October 1, 2005

New section

Sec. 6

October 1, 2005

New section

Sec. 7

October 1, 2005

New section

Sec. 8

October 1, 2005

New section

Sec. 9

October 1, 2005

45a-257a(c)

Sec. 10

October 1, 2005

45a-436(h)

Sec. 11

October 1, 2005

46b-36

Statement of Purpose:

To provide for a statutory elective share of a decedent's estate to be taken by the surviving spouse of the decedent.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]