Date: Wed, 05 Feb 1997 12:46:26 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I HOUSE BILL 118 HOUSE DRAFT 1 SENATE DRAFT 1 (Part 2 of 2) Aloha awakea kakou. Pages 16 through 30 follow. Again, please do not reformat if rebroadcasting. Mahalo. Page 16 H.B. No. 118 H.D.1 S.D. 1 l amended to read as follows: 2 "
560:2-802 Effect of divorce, annulment, [and] decree of 3 separation [.], and termination of reciprocal beneficiary 4 relationship. (a) An individual who is divorced from the S decedent or whose marriage to the decedent has been annulled is 6 not a surviving spouse unless, by virtue of a subsequent 7 marriage, the individual is married to the decedent at the time 8 of death. A decree of separation that does not terminate the 9 status of husband and wife is not a divorce for purposes of this lO section. An individual who has terminated a reciprocal l1 beneficiary relationship with the decedent is not deemed a l2 surviving reciprocal beneficiary unless, by virtue of a l3 subseguent registration as a reciprocal beneficiary, the l4 individual is the reciprocal beneficiary of the decedent at the l5 time of death. 16 (b) For purposes of parts 1, 2, 3, and 4 of this article, l7 and of section 560:3-203, a surviving spouse or reciprocal 18 beneficiary does not include: 19 (1) An individual who obtains or consents to a final decree 20 or judgment of divorce from the decedent or an 21 annulment of their marriage, which decree or judgment 22 is not recognized as valid in this State, unless 23 subsequently they participate in a marriage ceremony Page 17 H.B. No. 118 H.D.1 S.D. 1 1 purporting to marry each to the other or live together 2 as husband and wife; 3 (2) An individual who, following an invalid decree or 4 judgment at divorce or annulment obtained by the 5 decedent, participates in a marriage ceremony with a 6 third Individual; [or] 7 (3) An individual who was a party to a valid proceeding S concluded by an order purporting to terminate all 9 marital property rights[.]; or 10 (4) An individual who does not have a certificate of 11 reciprocal beneficiary relationship declaring the 12 decedent as their reciprocal beneficiary or the 13 relationship has been terminated under chapter____or 14 otherwise." 15 SECTION 12. Section 560:2-804, Hawai`i Revised Statutes, is 16 amended to read as follows: 17 "
56O:2-8O4 Revocation of probate and nonprobate transfers 18 by divorce[;] or termination of reciprocal beneficiary 19 relaticnship; no revocation br other changes of circumstance. 20 (a) Definitions. In this section: 21 "Disposition or appointment of property" includes a transfer 22 of an item of property or any other benefit to a beneficiary 23 designated in a governing instrument. Page 18 H.B. No. 118 H.D.1 S.D. 1 1 "Divorce or annulment" means any divorce or annulment,. or 2 any dissolution or declaration of invalidity of a marriage, that 3 would exclude the spouse as a surviving spouse within the meaning 4 of section 560:2-802. A decree of separation that does not 5 terminate the status of husband and wife is not a divorce for 6 purposes of this section 7 "Divorced individual" includes an individual whose marriage 8 has been annulled. 9 "Governing instrument" means a governing instrument executed lO by [the]: 11 (1) A divorced individual before the divorce or annulment 12 of the individual's marriage to the individual's former 13 spouse[.]; or 14 (2) An individual who is a former reciprocal beneficiary 15 before the termination of the reciprocal beneficiary 16 relationship with the individual's former reciprocal 17 beneficiary. 18 "Relative of the divorced individual's former spouse" means 19 an individual who is related to the divorced individual's former 20 spouse by blood, or affinity and who, after the divorce or 2l annulment, is not related to the divorced individual by blood, 22 adoption, or affinity. 23 "Revocable", with respect to a disposition, appointment, Page 19 H.B. No. 118 H.D.1 S.D. 1 1 provision, or nomination, means one under which [the]: 2 (1) The divorced individual, at the time of the divorce or 3 annulment, was alone empowered, by law or under the 4 governing instrument, to cancel the designation in 5 favor of the individual's former spouse or former 6 spouse's relative, whether or not the divorced 7 individual was then empowered to designate the S individual's self in place of the individual's former 9 spouse or in place of the individual's former spouse's 10 relative and whether or not the divorced individual 11 then had the capacity to exercise the power[.]; or 12 (2) An individual who is a former reciprocal beneficiary, 13 at the time of the termination, was alone empowered, by 14 law or under the governing instrurnent, to cancel the 15 designation in favor of the individual's former partner 16 or former partner's relative, whether or not the 17 individual was then empowered to designate the 18 individual's self in p1ace of the individual's former 19 partner or in place of the individual's former 20 partner's relative and whether or not the individual 21 who is the former reciprocal beneficiary then had the 22 capacity to exercise the power. 23 "Termination" means the dissolution of reciprocal Page 20 H.B. No. 118 H.D.1 S.D. 1 1 beneticiary relationship under chapter____between two adu1ts. 2 (b) Revocation upon divorce[,] or termination.the entering into a reciproca1 7 beneficiary relationship, or termination, the divorce or S annulment of a marriage[:] or termination of a reciprocal 9 beneficiary relationship: 10 (1) Revokes any revocable: 11 (A) Disposition or appointment of property made by a 12 divorced individual or a former reciprocal 13 beneficiary to the individual's former spouse or 14 reciprocal beneficiary in a governing instrument 15 and any disposition or appointment created by law 16 or in a governing instrument to a relative of the 17 divorced individual's former spouse[;] or 18 reciprocal benefigiary; 19 (B) Provision in a governing instrument conferring a 20 general or nongeneral power of appointment on the 21 divorced individual's former spouse or an 22 individual's former reciprocal beneficiary or on a 23 relative of the divorced individual's former Page 21 H.B. No. 118 H.D.1 S.D. 1 1 spouse[;) or an individual's former reciprocal 2 beneficiary; and 3 (C) Nomination in a governing instrument, nominating a 4 divorced individual's former spouse or a relative 5 of the divorced individual's former spouse or an 6 individual's former reciprocal beneficiary or a 7 relative of the former reciprocal beneficiary to 8 serve in any fiduciary or representative capacity, 9 including a personal representative, executor, 10 trustee, conservator, agent, or guardian; and 11 (2) Severs the interests of the fonner spouses or 12 reciprocal beneficiaries in property held by them at 13 the time of the divorce [or], annulment, or 14 termination, as joint tenants with the right of 15 survivorship or as community property with the right of 16 survivorship, transforming the interests of the former 17 spouses or reciprocal beneficiaries into tenancies in 18 common. 19 (c) Effect of severance. A severance under subsection 20 (b) (2) does not affect any third-party interest in property 21 acquired for value and in good faith reliance on an apparent 22 title by survivorship in the survivor of the former spouses or 23 reciprocal beneficiaries unless a writing declaring the severance Page 22 H.B. No. 118 H.D.1 S.D. 1 1 has been noted, registered, filed, or recorded in records 2 appropriate to the kind and location of the property which are 3 relied upon, in the ordinary course of transactions involving 4 such property, as evidence of ownership. S (d) Effect of revocation. Provisions of a governing 6 instrument are given effect as if the former spouse or reciprocal 7 beneficiary and relatives of the former spouse or reciprocal 8 beneficiary disclaimed all provisions revoked by this section or, 9 in the case of a revoked nomination in a fiduciary or lO representative capacity, as if the former spouse or reciprocal 11 beneficiary and relatives of the former spouse or reciprocal l2 beneficiary died immediately before the divorce [or], l3 annulrnent[.], or termination. 14 (a) Revival if divorce nullified[.] or reciprocal 15 beneficiary relationship re-registered. Provisions revoked l6 solely by this section are revived by the divorced individual's l7 remarriage to the former spouse or by a nullification of the l8 divorce or annulment. 19 Provisions revoked sole1y by this section are revived by the 20 an individual's re-registering a reciprocal beneficiary 2l relationship to the former reciprocal beneficiary. 22 (f) No revocation for other change of circumstances. No 23 change of circumstances other than as described in this section Page 23 H.B. No. 118 H.D.1 S.D. 1 l and in section S60:2-8O3 effects a revocation. 2 (g) Protection of payors and other third parties. 3 (1) A payor or other third party is not liable for having 4 made a payment or transferred an item of property or 5 any other benefit to a beneficiary designated in a 6 governing instrument affected by a divorce, annulment, 7 [or] remarriage, termination, or re-registration of a 8 reciprocal beneficiary relationship, or for having 9 taken any other action in good faith reliance on the 10 validity of the governing instrument, before the payor 11 or other third party received written notice of the 12 divorce, annulment, [or] remarriage [.], termination, or 13 re-registration of a reciprocal beneficiary 14 relationship. A payor or other third party is liable 15 for a payment made or other action taken after the 16 payor or other third party received written notice of a 17 claimed forfeiture or revocation under this section; 18 (2) Written notice of the divorce, annulment, [or] 19 remarriage, termination, or re-registration of a 20 reciprocal beneficiary relationship under this 21 subsection must be mailed to the payor's or other third 22 party's main office or home by registered or certified 23 mail, return receipt requested, or served upon the Page 24 H.B. No. 118 H.D.1 S.D. 1 1 payor or other third party in the same manner as a 2 sumons in a civil action. Upon receipt of written 3 notice of the divorce, annulment, [or] remarriage, 4 termination, or re-registration of a reciprocal 5 beneficiary relationship, a payor or other third party 6 may pay any amount owed or transfer or deposit any item 7 of property held by it to or with the court having 8 jurisdiction of the probate proceedings relating to the 9 decedent's estate or, it no proceedings have been 10 commenced, to or with the court having jurisdiction of 11 probate proceedings relating to decedents' estates 12 located in the judicial circuit of the decedent's 13 residence. The court shall hold the funds or item of 14 property and, upon its determination under this 15 section, shall order disbursement or transfer in 16 accordance with the determination. Payments, 17 transfers, or deposits made to or with the court 18 discharge the payor or other third party from all 19 claims for the value of amounts paid to or items of 20 property transferred to or deposited with the court. 21 (h) Protection of bona fide purchasers; personal liability 22 of recipient. 23 (1) A person who purchases property from a former spouse, Page 25 H.B. No. 118 H.D.1 S.D. 1 1 former reciprocal beneficiary, relative of a former 2 spouse[,] or reciprocal beneficiary, or any other 3 person for value and without notice, or who receives 4 from a former spouse, a former reciprocal beneficiary, 5 relative of a former spouse[,] or reciprocal 6 beneficiary, or any other person a payment or other 7 item of property in partial or full satisfaction of a S legally enforceable obligation, is neither obligated 9 under this section to return the payment, item of 10 property, or benefit nor is liable under this section 11 for the amount of the payment or the value of the item 12 of property or benefit. But a former spouse, former 13 reciprocal beneficiary, relative of a former spouse[,] 14 or reciprocal beneficiary, or other person who, not for 15 value, received a payment, item of property, or any 16 other benefit to which that person is not entitled 17 under this section is obligated to return the payment, 18 item of property, or benefit, or is personally liable 19 for the amount of the payment or the value of the item 20 of property or benefit, to the person who is entitled 21 to it under this section; 22 (2) If this section or any part of this section is 23 preempted by federal law with respect to a payment, an Page 26 H.B. No. 118 H.D.1 S.D. 1 1 item of property, or any other benefit covered by this 2 section, a former spouse, former reciprocal 3 beneficiary, relative of the former spouse[,] or 4 reciprocal beneficiary, or any other person who, not 5 for value, received a payment, item of property, or any 6 other benefit to which that person is not entitled 7 under this section is obligated to return that payment 8 item of property, or benefit, or is personally liable 9 for the amount of the payment or the value of the item 10 of property or benefit, to the person who would have 11 been entitled to it were this section or part of this 12 section not preempted." 13 SECTION 13. Sections 560:1-201, 560:2-102, 560:2-103, 14 560:2-114, 560:2-203, 560:2-205, 560:2-206, 560:2-207, 560:2-210, 13 560:2-211, 560:2-212, 560:2-213, 560:2-214, 560:2-402, 560:2-403, 16 560:2-404, 560:2-405, 560:2-705, 560:2-803, 560:3-203, 560:3-301, 17 560:3-302, 560:3-403, 560:3-703, 560:3-713, 560:3-901, 560:3-902, 18 560~3-906, 560:3-915, 560:3-916, 560:3-1212, 560:5-301, 19 560:5-309, 560:5-311, 560:5-312, 560:5-408, 560:5-410, 560:5-422, 20 560;5-601, and 560:6-107, Hawai`i Revised Statutes, are amended by 2l substituting the term "spouse or reciprocal beneficiary", or like 22 terms, wherever the word "spouse", or like term1 appears, as the 23 context requires. Page 27 H.B. No. 118 H.D.1 S.D. 1 1 SECTION 14. Section 663-3, Hawai`i Revised Statutes, is 2 amended to read as follows: 3 "
663-3 Death by wrongful act. (a) When the death of a 4 person is caused by the wrongful act, neglect, or default of any 5 person, the deceased's legal representative, or any of the 6 persons [hereinafter] renumerated[,] in subsection (b), may 7 maintain an action against the person causing the death or 8 against the person responsible for the death. The action shall 9 be maintained on behalf of the persons [hereinafter] lO enumerated[,] in subsection (b), except that the legal 11 representative may recover on behalf of the estate the reasonable l2 expenses of the deceased's last illness and burial. 13 (b) In any action under this section, such damages may be l4 given as under the circumstances shall be deemed fair and just 15 compensation, with reference to the pecuniary injury and loss of l6 love and affection, including 17 (1) [loss] Loss of society, companionship, comfort, 18 consortium, or protection[.]; 19 (2) [loss] Loss of marital care, attention, advice, or 20 counsel[,]; 21 (3) Loss of care, attention, advice, or counsel of a 22 reciprocal beneficiary as defined in chapter____; 23 [(3) loss] (4) Loss of filial care or attention[,]; or Page 28 H.B. No. 118 H.D.1 S.D. 1 1 [(4) loss] (5) Loss of parental care, training, guidance, or 2 education, suffered as a result of the death of the person; 3 by the surviving spouse, reciprocal beneficiary, children, 4 father, mother, and by any person wholly or partly dependent upon 5 the deceased person. The jury or court sitting without jury 6 shall allocate the damages to the persons entitled thereto in its 7 verdict or judgment, and any damages recovered under this 8 section, except for reasonable expenses of last illness and 9 burial, shall not constitute a part of the estate of the lO deceased. Any action brought under this section shall be 11 commenced within two years from the date of death of the injured l2 person, except as otherwise provided." 13 SECTTON 15. Sections 79-7, 79-13, 83-8, 87-1, 87-23.5, 88- 14 1, 88-4, 88-5, 88-84, 88-85. 88-286, 231-57, 235-2.4, 235-4, 235- 15 7,235-12, 235-51, 235-52, 235-54, 235-55.6, 235-55.9, 235-61, 16 235-102.5, 236A-5, 304-4,327-3,334-6, 334-59, 334-60.4,334- 17 60.5, 334-125, 334-134,351-2,386-41, 386-42, 386-43,386-54, 18 388-4, 398-3, 425-125, 431:10-234, 431:lOC-103, 432:1-104, 443B- 19 1, 516-71,586-1,663-1, 706-670.5, 706-673, 707-769, 708-834, 20 709-906, and 801D-2, Hawai`i Revised Statutes, are amended by 2l substituting the words "spouse or reciprocal beneficiary", or Z2 like terms, wherever the term "spouse", or like term, appears, as 23 the context requires Page 29 H.B. No. 118 H.D.1 S.D. 1 1 SECTION 16. Sections 105-2, 209-28, 209-29, 231-25, 235- 2 55.7, 306-1, 324-22, 327-5, 334-6, 334-59, 334-60.4, 334-60.5, 3 352-13, 353-17, 385-1, 386-41, 443B-1, and 8OlD-4, Hawai`i Revised 4 Statutes, are amended by substituting the term "family, including 5 reciprocal beneficiary", or like terms, wherever the words, 6 "family" or "families", or like terms, appear, as the context 7 requires. 8 SECTION 17. Sections 171-74, 231-57, 235-1, 235-16, 235- 9 55.6, 235-55.9, 235-61, 235-93, 235-97, 247-3, 247-5, and 453-15, lO Hawai`i Revised Statutes, are amended by substituting the term 11 "husband and wife, or reciprocal beneficiaries", or like terms, l2 wherever the words "husband and wife", or like terms, appear, as 13 the context requires. 14 SECTION 18. Sections 88-163, 88-189, 171-99, 386-34, and 15 386-41, Hawai`i Revised Statutes, are amended by substituting the l6 words "widow, widower, or reciprocal beneficiary", or like terms, l7 wherever the words "widow or widower", or like terms, appear, as 18 the context requires. 19 SECTION 19. Sections 88-93, 171-74, 235-5.5, and 235-55.6, 20 Hawai`i Revised Statutes, are amended by substituting the term 21 "marri6ge or reciprocal beneficiary relationship", or like terms, Z2 wherever the word "marriage", or like term, appears, as the 23 context requires. 24 SECTION 20. Any proposed health insurance coverage provided 25 pursuant to this Act shall be exempt from the provisions of part 26 IV of chapter 23, Hawai`i Revised Statutes. Page 30 H.B. No. 118 H.D.1 S.D. 1 1 SECTTON 21. If any provision of this Act, or the 2 application thereof to any person or circumstance is held 3 invalid, the invalidity does not affect other provisions or 4 applications of the Act which can be given effect without the 5 invalid provision or application, and to this end the provisions 6 of this Act are severable. 7 SECTION 22. Statutory material to be repealed is bracketed. 8 New statutory material is underscored. 9 SECTION 23. This Act, upon its approval, shall take effect lO upon the ratification of the constitutional amendment, in 11 accordance with article XVII, section 3, of the Constitution of l2 the State of Hawai`i, proposed in H.B. No. 117, S.D.l. HBll8 SD1 JDC ~~pau part 2 of 2~~