HRS § 560:2-702 Requirement of Survival By One Hundred Twenty Hours

• Library: Hawaii Statutes
• Edition: 2023
• Currency: Current through 2023 Legislative Session
• Year: 2023
• Citation: HRS § 560:2-702

(a) Requirement of survival by one hundred twenty hours under probate code. For the purposes of this chapter, except as provided in subsection (d), an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by one hundred twenty hours is deemed to have predeceased the event.

(b) Requirement of survival by one hundred twenty hours under governing instrument. Except as provided in subsection (d), 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.

(c) Co-owners with right of survivorship; requirement of survival by one hundred twenty hours. Except as provided in subsection (d), if:

(1) 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; and

(2) 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.

For the purposes of this subsection, "co-owners with right of survivorship" includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles one or more to the whole of the property or account on the death of the other or others.

(d) Exceptions. Survival by one hundred twenty hours is not required 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 by a specified period; but survival 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 fail to qualify for validity under section 560:2-901(a)(1), (b) (1), or (c)(1) or to become invalid under section 525-1(a)(2), (b) (2), or (c)(2); but survival must be established by clear and convincing evidence; or