Virginia Code 64.2-2205: Exceptions
Survival by 120 hours is not required if:
Terms Used In Virginia Code 64.2-2205
- Common disaster: A sudden and extraordinary misfortune that brings about the simultaneous or near-simultaneous deaths of two or more associated persons, such as husband and wife.
- Decedent: A deceased person.
- Evidence: Information presented in testimony or in documents that is used to persuade the fact finder (judge or jury) to decide the case for one side or the other.
- Governing instrument: means a deed, will, trust, insurance or annuity policy, account with POD designation, security registered in beneficiary form (TOD), or pension, profit-sharing, retirement, or similar benefit plan; instrument creating or exercising a power of appointment or a power of attorney; or a donative, appointive, or nominative instrument of any other type. See Virginia Code 64.2-2200
- Marital deduction: The deduction(s) that can be taken in the determination of gift and estate tax liabilities because of the existence of a marriage or marital relationship.
1. The governing instrument contains language dealing explicitly with (i) simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case, (ii) deaths under circumstances where the order of death cannot be established by proof, or (iii) the marital deduction, or the governing instrument contains a provision to or for the benefit of the decedent‘s spouse where it is the decedent’s intent, as manifested from the governing instrument or external evidence, that the decedent’s estate receive the benefit of the federal estate tax marital deduction;
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, including the death of another individual, for a specified period; but survival of the event, another individual, or the specified period shall be established by clear and convincing evidence;
3. The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to be invalid under the Uniform Statutory Rule Against Perpetuities (§§ 55.1-124 through 55.1-129); but survival shall be established by clear and convincing evidence; or
4. The application of a 120-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.