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 Back | 144th General Assembly
House Bill # 185 |
| Primary Sponsor: | Stone | Additional Sponsor(s): Sen. DeLuca Reps. Brady Carey Hocker Hudson Lavelle Longhurst Plant B. Short D. Short Valihura Viola Sens. Bonini Bunting Cook Sokola Still |
| CoSponsors: | { NONE...} |
| Introduced on : | 05/30/2007 | |
| Long Title: | AN ACT TO AMEND TITLE 12 OF THE DELAWARE CODE RELATING TO DECEDENTS' ESTATES. |
| Synopsis: | Section 1 of the Bill simplifies the calculation of the elective estate by (1) eliminating the need and ability to determine the amount that each spouse contributed to any property that the spouses owned as tenants by the entireties or as joint tenants with right of survivorship, thereby adopting the rule under federal estate tax law that each spouse is deemed to have owned one-half of any such property as to which such tenancy was created on or after January 1, 1977; and (2) instituting the same rule with respect to any such tenancy created on or before December 31, 1976, thereby overcoming the rule to the contrary developed in federal case law, and similarly eliminating the need and ability to determine the amount that each spouse contributed to any such property as to which such tenancy was created on or before such date. Thus, regardless of when such tenancy was created, each spouse will, for elective share purposes, be deemed to have owned one-half of any such property.
Section 2 of the Bill clarifies that a surviving spouse is still entitled to an elective share even if the federal estate tax, upon which the calculation of the elective share is based, is permanently or temporarily repealed.
Section 3 of the Bill, in conjunction with Section 2, re-designates existing subsection (b) of 12 Del. C. §902 as subsection (c). Section 3 also clarifies the form to be used to calculate the elective share, and the date that such form must be provided to the surviving spouse, if the federal estate tax is permanently or temporarily repealed.
Section 4 of the Bill reiterates that property passing to the surviving spouse by testate or intestate succession is deemed to have passed to the surviving spouse for elective share purposes. Section 4 also removes language regarding the effect of disclaimed or renounced interests, but only because Section 11 expands upon such language and applies it to all property deemed to have passed to the surviving spouse for elective share purposes under 12 Del. C. §903(1).
Section 5 of the Bill tracks the change in Section 1 by instituting a rule that one-half of the amount of any property that the spouses owned as tenants by the entirety or as joint tenants with right of survivorship is deemed to have passed to the surviving spouse for elective share purposes. Section 5 also clarifies to which property such rule applies.
Sections 6 through 8 of the Bill eliminate the need to determine which spouse contributed the premiums for any insurance on the decedent’s life and any lump sum, annuity, or other payments received by the surviving spouse by reason of surviving the decedent, and institute a rule that any such assets are deemed to have passed to the surviving spouse for elective share purposes. Section 7, however, provides that certain payments to surviving spouses — including payments under the federal Social Security system or any other similar state or federal retirement system providing an individual right to a surviving spouse to receive payments as a result of the decedent’s death, which description is intended to include benefits payable under the Railroad Retirement Act, the Civil Service Retirement System (CSRS), the Federal Employees Retirement System (FERS), and similar state or federal retirement systems — are not counted among the assets deemed to have passed to the surviving spouse for elective share purposes.
Section 9 of the Bill merely clarifies the wording of 12 Del. C. §903(1)(i).
Section 10 of the Bill further effectuates the purposes of Sections 6 through 8.
Section 11 of the Bill expands upon language transferred from 12 Del. C. §903(1)(a) under Section 4 of the Bill, and applies it to all property deemed to have passed to the surviving spouse for elective share purposes under 12 Del. C. §903(1). Thus, if a surviving spouse disclaims property, the disclaimer generally is not recognized for elective share purposes, such that the disclaimed assets are deemed to have passed to the surviving spouse for elective share purposes. This Section of the Bill also creates an exception to that rule, however, for trusts in which the surviving spouse’s interest fails either to qualify for the marital deduction for federal estate tax purposes or to provide the surviving spouse with an interest reasonably equivalent to an interest that would qualify for the marital deduction for federal estate tax purposes. In other words, if the trust fails to meet either of those criteria, the surviving spouse can disclaim the surviving spouse’s interest in the trust without such interest being deemed to pass to the surviving spouse for elective share purposes.
Section 12 of the Bill provides an effective date.
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| Committee Reports: |
House Committee Report 06/07/07 F=8 M=2 U=0---->
Senate Committee report 06/20/07 F=1 M=4 U=0-----> |
| Voting Reports: |
House vote: () Passed 6/19/07 2:54:50 PM------->
Senate vote: () Passed 6/30/07 9:36:13 PM-------> |
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Actions History:
| Jul 17, 2007 - Signed by Governor
Jun 30, 2007 - Passed by Senate. Votes: 20 YES 0 NO 0 NOT VOTING 1 ABSENT
Jun 20, 2007 - Reported Out of Committee (BANKING) in Senate with 1 Favorable, 4 On Its Merits
Jun 19, 2007 - Assigned to Banking Committee in Senate
Jun 19, 2007 - Passed by House of Representatives. Votes: 41 YES 0 NO 0 NOT VOTING 0 ABSENT
Jun 07, 2007 - Reported Out of Committee (ECONOMIC DEVELOPMENT/BANKING & INSURANCE) in House with 8 Favorable, 2 On Its Merits
May 30, 2007 - Introduced and Assigned to Economic Development/Banking & Insurance Committee in House
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