2014 -- S 2621

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LC004844

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE

     Introduced By: Senator Michael J.McCaffrey

     Date Introduced: March 04, 2014

     Referred To: Senate Judiciary

     It is enacted by the General Assembly as follows:

     SECTION 1. Sections 33-1-1, 33-1-2, 33-1-3, 33-1-5, 33-1-6, 33-1-7 and 33-1-11 of the

General Laws in Chapter 33-1 entitled "Rules of Descent" are hereby amended to read as follows:

     33-1-1. Real estate descending by intestacy to children or descendants, parents, or

brothers and sisters. -- Whenever any person having title to any real estate of inheritance shall

die intestate as to such estate, it shall descend and pass in equal portions to his or her kindred, in

the following course:

      (1) First to his the intestate's children or their descendants, if there are any.

      (2) Second, if there be no children nor their descendants, then to the intestate's parents in

equal shares, or to the surviving parent of such intestate.

      (3) Third, if there is no parent, then to the intestate's brothers and sisters of the intestate,

and their descendants.

     33-1-2. Descent of real estate to paternal or maternal kindred. -- If there is no the

intestate has no surviving parent, nor brother, nor sister, nor their descendants, the inheritance

shall go in equal moieties to the intestate's paternal and maternal kindred, each in the following

course:

      (1) First to the grandparents, in equal shares, if any there be.

      (2) Second, if there be no grandparent, then to the uncles and aunts, or their descendants

by representation, or such of them as there be.

      (3) Third, if there be no grandparent, nor uncle, nor aunt, nor their descendants, then to

the great grandparents in equal shares, if any there be.

      (4) Fourth, if there be no great grandparent, then to the great uncles and great aunts or

their descendants by representation, or such of them as there be; and so on, in other cases, without

end, passing to the nearest lineal ancestors and their descendants or such of them as there be.

     33-1-3. Descent when no paternal or maternal kindred survive. -- When in this

chapter the inheritance is directed to go by moieties to the intestate's paternal and maternal

kindred, if there are no such kindred on the one part, the whole shall go to the other part; and if

there are no kindred either on the one part or the other the whole shall go to the husband or wife

of the intestate, and intestate's surviving spouse or if the husband or wife is dead spouse did not

survive the intestate, it shall go to his or her the spouse's kindred in the like course as if such

husband or wife he or she had survived the intestate and then died entitled to the estate.

     33-1-5. Life estate descending to spouse. -- Whenever the intestate dies without issue

and leaves a husband or wife surviving spouse, the real estate of the intestate shall descend and

pass to the husband or wife surviving spouse for his or her natural life. The provisions of sections

§§33-1-1 and 33-1-2 shall be subject to the provisions of this section and section §33-1-6.

     33-1-6. Widow's or husband's allowance of real estate in fee. -- The probate court

having jurisdiction of the estate of the intestate, if a resident of this state, or the probate court of

any city or town in which the real estate of the intestate is situated if not a resident of this state,

may also, in its discretion if there is no issue as aforesaid, upon petition filed within six (6)

months from the date of the first publication of notice of the qualification of the administrator of

the estate of the intestate, allow and set off to the widow or husband intestate’s surviving spouse

in fee real estate of the decedent intestate situated in this state to an amount not exceeding

seventy-five thousand dollars ($75,000) one hundred fifty thousand dollars ($150,000) in value,

over and above all incumbrances, if not required for the payment of the debts of the decedent

intestate; provided that if the real estate shall be in a single parcel of greater value over and above

incumbrances than seventy-five thousand dollars ($75,000) one hundred fifty thousand dollars

($150,000) and shall be deemed by the court, because of such condition and value, to be

incapable of being allowed and set off hereunder, either as a whole or by partition, without

unreasonable diminution in the value thereof, the court may order the parcel to be sold by the

administrator, the administrator giving bond as in other cases of the sale of real estate, and from

the proceeds of such sale may allow and set off the sum of seventy-five thousand dollars

($75,000) one hundred fifty thousand dollars ($150,000) to the widow or surviving husband

intestate's surviving spouse for his or her own use and any surplus of the proceeds of sale shall be

deemed to be real estate for the purposes of descent and distribution; provided, however, that title

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to real estate situated in any town or city of this state shall not pass by the decree of the probate

court setting off and allowing such real estate, for the purpose of conveyance by the widow or

surviving husband intestate's surviving spouse until a copy of such decree as entered, duly

certified by the probate clerk, is recorded in the records of land evidence in the town or city

where the land is situated. The allowance and set off under this section shall be in addition to the

life estate pursuant to § 33-1-5.

     33-1-7. Descendants of deceased heirs. -- The descendants of any person deceased shall

inherit the real and personal estate which that the person would have inherited had the person

survived the intestate, subject to the express provisions of these canons of descent and

distribution.

     33-1-11. Advancements Advancements and debts of decedent. -- If real estate shall be

conveyed by deed of gift, or personal estate shall be delivered to a child or grandchild, and

charged, or a memorandum made thereof in writing by the intestate or by his or her order, or shall

be delivered expressly for that purpose in the presence of two (2) witnesses, who were requested

to take notice thereof, the real estate or personal estate shall be deemed an advancement to the

child to the value of the real or personal estate. (a) If a person dies intestate as to all or a portion

of the decedent's estate, any property given by the decedent during his or her lifetime to an

individual who, at decedent's death, is an heir, shall be treated as an advancement against the

heir's intestate share only if:

     (1) The decedent declared in a contemporaneous writing, or the heir acknowledged in

writing, that the gift is an advancement; or

     (2) The decedent's contemporaneous writing, or the heir's written acknowledgment,

otherwise indicates that the gift is to be taken into account in computing the division and

distribution of the decedent's intestate estate.

     (b) For purposes of subsection (a) of this section, property advanced is valued as of the

time the heir came into possession or enjoyment of the property or as of the time of the decedent's

death, whichever first occurs.

     (c) If the recipient of the property fails to survive the decedent, the property is not taken

into account in computing the division and distribution of the decedent's intestate estate, unless

the decedent's contemporaneous writing provides otherwise.

     (d) A debt owed to decedent is not charged against the intestate share of any individual

except the debtor. If the debtor fails to survive the decedent, the debt is not taken into account in

computing the intestate share of the debtor's descendants.

     SECTION 2. Sections 33-10-1, 33-10-2 and 33-10-3 of the General Laws in Chapter 33-

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10 entitled "Allowances to Families of Decedents" are hereby amended to read as follows:

     33-10-1. Wearing apparel and exempt personal property allowed to widow or

widower and children. -- The wearing apparel of the widow or widower surviving spouse and

minor children of a deceased person decedent shall belong to them, respectively. The widow or

widower surviving spouse shall be entitled, for herself or himself individually and for the family

under her or his care, to such furniture, furnishings, household effects, supplies, and, in addition

thereto, such other personal property of the husband or wife decedent exempt from attachment by

law, as the probate court shall deem necessary, having regard to all the circumstances of the case;

or, if there is no widow or widower surviving spouse, the minor children shall be entitled to the

furniture, furnishings, household effects, or the use thereof, in such manner as the court shall

direct.

     33-10-2. Property allowed not assets in hands of executor or administrator. -- Such

part of the decedent's personal property as the court shall allow to the widow, widower decedent's

surviving spouse or family of the deceased, although inventoried, shall not be assets in the hands

of the executor or administrator decedent's personal representative.

     33-10-3. Allowances for temporary support of family. -- The probate court shall make

reasonable allowance out of the decedent's probate estate of the deceased for the support of his or

her family, until the support can otherwise be provided for, for a period not exceeding six (6)

months from the date of the death, having regard to the situation of the family and the value and

circumstances of the estate. The allowance may be fixed at any time upon application of the

executor or administrator personal representative, or of any party in interest, filed within six (6)

months after the first publication of notice of the qualification of the executor or administrator

personal representative. The court may, in its discretion, provided a final account has not been

allowed, make an additional allowance under like conditions for the support of the family for a

second period not exceeding six (6) months, the allowance to be fixed at any time after the first

six- (6) months (6) period has passed and within one year after the first publication of notice of

the qualification of the executor or administrator personal representative upon his or her

application, or upon the application of the personal representative or of any party in interest. After

exhausting the personal property, real estate may be sold to provide the amount of allowance

decreed in the same manner as for the payment of debts. An appeal from a decree granting letters

testamentary or of administration shall not prevent the allowance being made by the probate court

or the payment thereof. An appeal from a decree making any allowance shall not prevent the

payment of the allowance if a bond in such amount as may be fixed by the court, but no less than

the amount of the allowance be given to the court by a widow or widower surviving spouse, if

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any, or by a guardian of the minor children in case there be no widow or widower surviving

spouse, with surety or sureties approved by the court, and conditioned to repay all in excess of

what is finally determined to be a reasonable allowance or to return all of the allowance in case

the decree granting the allowance is finally reversed in the full amount. The bond required by the

provisions of this section and the remedies thereon shall be governed by the provisions of chapter

17 of this title as far as the context thereof permits.

     SECTION 3. Chapter 33-1 of the General Laws entitled "Rules of Descent" is hereby

amended by adding thereto the following sections:

     33-1-12. Intestate estate. – (a) Any part of a decedent's estate not effectively disposed of

by will passes by intestate succession to the decedent's heirs as prescribed in this chapter, except

as modified by the decedent's will.

     (b) A decedent may by will expressly exclude or limit the right of an individual or class

to succeed to property of the decedent passing by intestate succession. If that individual or a

member of that class survives the decedent, the share of the decedent's intestate estate to which

that individual or class would have succeeded passes as if that individual or each member of that

class has disclaimed an intestate share.

     33-1-13. Survivorship. – An individual who fails to survive the decedent by one hundred

twenty (120) hours is considered to have predeceased the decedent for purposes of homestead

allowance, exempt property, and intestate succession, and the decedent's heirs are determined

accordingly. If it is not established by clear and convincing evidence that an individual, who

would otherwise be an heir, survived the decedent by one hundred twenty (120) hours, it is

considered that the individual failed to survive for the required period. This section is not to be

applied if its application would result in escheat of intestate estate to the state.

     SECTION 4. Title 33 of the General Laws entitled "PROBATE PRACTICE AND

PROCEDURE" is hereby amended by adding thereto the following chapter:

CHAPTER 28

ELECTIVE SHARE

     33-28-1. Elective share. – (a) The surviving spouse of a decedent who dies domiciled in

this state has a right of election, under the limitations and conditions stated in this chapter, to take

an elective share equal to the life estate and allowance of an intestate's real estate pursuant to §§

33-1-5 and 33-1-6, and share of an intestate's personal estate pursuant to § 33-1-10. The elective

share may be taken in kind or the value thereof.

     (b) If the right of election is exercised by or on behalf of the surviving spouse, the

surviving spouse's allowances pursuant to chapter 10 of this title, if any, are not charged against,

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but are in addition, to the elective share.

     (c) 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.

     33-28-2. Right of election personal to surviving spouse – Incapacitated surviving

spouse. – (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 pursuant to § 33-28-4(a). If

the election is not exercised by the surviving spouse personally, it may be exercised on the

surviving spouse's behalf by the surviving spouse's 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 probate court may authorize transfer of property in kind, or payment of the value

thereof, to the spouse's personal representative upon such terms and conditions as the court

determines to be in the spouse's best interest.

     33-28-3. Waiver of right to elect and of other rights. -- (a) The right of election of a

surviving spouse and the rights of the surviving spouse to allowances pursuant to chapter 10 of

this title may be waived, wholly or partially, before or after marriage, by a written contract,

agreement, or waiver signed by the surviving spouse. The written contract, agreement, or waiver

is enforceable without consideration.

     (b) A surviving spouse's waiver is not enforceable if the surviving spouse proves that: (1)

The surviving spouse did not execute the waiver voluntarily; or (2) The waiver was

unconscionable when it was executed and, before execution of the waiver, the surviving spouse:

(i) Was not provided a fair and reasonable disclosure of the property or financial obligations of

the decedent; (ii) Did not voluntarily and expressly waive, in writing, any right to disclosure of

the property or financial obligations of the decedent beyond the disclosure provided; and (iii) Did

not have, or reasonably could not have had, an adequate knowledge of the property or financial

obligations of the decedent.

     (c) An issue of unconscionability of a waiver is for decision by the probate court or other

court of competent jurisdiction as a matter of law.

     (d) Unless it provides to the contrary, a waiver of "all rights" or equivalent language in

the property or estate of a present or prospective spouse or a complete property settlement entered

into after, or in anticipation of, separation or divorce is a waiver of all rights to elective share and

allowances pursuant to chapter 10 of this title by each spouse in the property of the other and a

renunciation by each of all benefits that would otherwise pass to that spouse from the other by

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intestate succession or by virtue of any will executed before the waiver or property settlement.

     33-28-4. Proceeding for elective share – Time limit. – (a) If any estate, real or personal,

be devised or bequeathed to a surviving spouse, the devise or bequest shall bar the elective share

unless the surviving spouse shall, within six (6) months after the date of the first publication of

the qualifications of the fiduciary of the estate of the deceased spouse, file in the probate court a

written statement waiving and renouncing the devise and bequest and petitioning for the elective

share. If any of the deceased spouse's real estate is located in any city or town other than that in

which the will of the decedent is probated, the waiver and petition shall also be filed in the

records of deeds in each city and town where the real estate is located. The surviving spouse

shall give notice of the time and place set for hearing to persons interested in the estate and to

those whose interests will be adversely affected by the taking of the elective share.

     (b) Within six (6) months after the date of the first publication of the qualifications of the

fiduciary of the estate of the deceased spouse, the surviving spouse may petition the probate court

for an extension of time for making an election not to exceed nine (9) months after the decedent's

death, upon notice of the time and place set for hearing, to persons interested in the estate and to

those whose interests will be adversely affected by the taking of the elective share.

     (c) The surviving spouse may withdraw a waiver and petition for an elective share at any

time before entry of a final determination by the probate court.

     (d) The order or judgment of the probate court may be enforced as necessary in suit for

contribution or payment in other courts of this state or other jurisdictions.

     SECTION 5. This act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO PROBATE PRACTICE AND PROCEDURE

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     This act would make several amendments to the statutes regarding rules of descent and

would also provide for an elective share to the surviving spouse of a decedent domiciled in this

state.

     This act would take effect upon passage.

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