64.1-104.6 - Exceptions. - Virginia Statutes

§ 64.1-104.6. Exceptions.

Survival by 120 hours is not required if:

1. The governing instrument contains language dealing explicitly with (i)simultaneous deaths or deaths in a common disaster and that language isoperable under the facts of the case, (ii) deaths under circumstances wherethe order of death cannot be established by proof, or (iii) the maritaldeduction, or contains a provision to or for the benefit of the decedent'sspouse where it is the decedent's intent, as manifested from the governinginstrument or external evidence, that the decedent's estate receive thebenefit of the federal estate tax marital deduction;

2. The governing instrument expressly indicates that an individual is notrequired to survive an event, including the death of another individual, byany specified period or expressly requires the individual to survive theevent, including the death of another individual, for a specified period; butsurvival of the event, another individual or the specified period must beestablished by clear and convincing evidence;

3. The imposition of a 120-hour requirement of survival would cause anonvested property interest or a power of appointment to be invalid under theRule Against Perpetuities; but survival must be established by clear andconvincing evidence; or

4. The application of a 120-hour requirement of survival to multiplegoverning instruments would result in an unintended failure or duplication ofa disposition; but survival must be established by clear and convincingevidence.

(1994, c. 475.)