Haw. Rev. Stat. § 560:2-707

Current through the 2024 Legislative Session

Section 560:2-707 - Survivorship with respect to future interests under terms of trust; substitute takers

(a) Definitions. In this section:

"Alternative future interest" means an expressly created future interest that can take effect in possession or enjoyment instead of another future interest on the happening of one or more events, including survival of an event or failure to survive an event, whether an event is expressed in condition-precedent, condition-subsequent, or any other form. A residuary clause in a will does not create an alternative future interest with respect to a future interest created in a nonresiduary devise in the will, whether or not the will specifically provides that lapsed or failed devises are to pass under the residuary clause.

"Beneficiary" means the beneficiary of a future interest and includes a class member if the future interest is in the form of a class gift.

"Class member" includes an individual who fails to survive the distribution date but who would have taken under a future interest in the form of a class gift had the individual survived the distribution date.

"Distribution date", with respect to a future interest, means the time when the future interest is to take effect in possession or enjoyment. The distribution date need not occur at the beginning or end of a calendar day, but can occur at a time during the course of a day.

"Future interest" includes an alternative future interest and a future interest in the form of a class gift.

"Future interest under the terms of a trust" means a future interest that was created by a transfer creating a trust or to an existing trust or by an exercise of a power of appointment to an existing trust, directing the continuance of an existing trust, designating a beneficiary of an existing trust, or creating a trust.

"Surviving beneficiary" or "surviving descendant" means a beneficiary or a descendant who neither predeceased the distribution date nor is deemed to have predeceased the distribution date under section 560:2-702.

(b) Survivorship required; substitute gift. A future interest under the terms of a trust executed after January 1, 1997 , shall be contingent on the beneficiary's surviving the distribution date. If a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following shall apply:

(1) Except as provided in paragraph (4), if the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift shall be deemed to be created in the surviving descendants of the deceased beneficiaries. The surviving descendants of the deceased beneficiaries shall take by representation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date;

(2) Except as provided in paragraph (4), if the future interest is in the form of a class gift, other than a future interest to "issue", "descendants", "heirs of the body", "heirs", "next of kin", "relatives", or "family", or a class described by language of similar import, a substitute gift shall be deemed to be created in the surviving descendants of any deceased beneficiary. The property to which the beneficiaries would have been entitled had all of them survived the distribution date shall pass to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary shall take the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary's surviving descendants who are substituted for the deceased beneficiary shall take by representation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this paragraph, "deceased beneficiary" means a class member who failed to survive the distribution date and left one or more surviving descendants;

(3) For the purposes of section 560:2-701, words of survivorship attached to a future interest shall not, in the absence of additional evidence, be a sufficient indication of an intent contrary to the application of this section. Words of survivorship include words of survivorship that relate to the distribution date or to an earlier or an unspecified time, whether those words of survivorship are expressed in condition-precedent, condition-subsequent, or any other form; and

(4) If a governing instrument creates an alternative future interest with respect to a future interest for which a substitute gift is created by paragraph (1) or (2), the substitute gift shall be superseded by the alternative future interest if :

(A) The alternative future interest is in the form of a class gift and one or more members of the class is entitled to take in possession or enjoyment; or

(B) The alternative future interest is not in the form of a class gift and the expressly designated beneficiary of the alternative future interest is entitled to take in possession or enjoyment.

As used in this subsection, "surviving descendants of the deceased beneficiaries" means the descendants of deceased beneficiaries or class members who would take under a class gift created in the trust.

(c) More than one substitute gift; which one takes. If, under subsection (b), substitute gifts are created and not superseded with respect to more than one future interest and the future interests are alternative future interests, one to the other, the determination of which of the substitute gifts takes effect is resolved as follows:

(1) Except as provided in paragraph (2), the property passes under the primary substitute gift;

(2) If there is a younger-generation future interest, the property passes under the younger-generation substitute gift and not under the primary substitute gift;

(3) In this subsection:

"Primary future interest" means the future interest that would have taken effect had all the deceased beneficiaries of the alternative future interests who left surviving descendants survived the distribution date.

"Primary substitute gift" means the substitute gift created with respect to the primary future interest.

"Younger-generation future interest" means a future interest that:

(A) Is to a descendant of a beneficiary of the primary future interest;

(B) Is an alternative future interest with respect to the primary future interest;

(C) Is a future interest for which a substitute gift is created; and

(D) Would have taken effect had all the deceased beneficiaries who left surviving descendants survived the distribution date except the deceased beneficiary or beneficiaries of the primary future interest.

"Younger-generation substitute gift" means the substitute gift created with respect to the younger-generation future interest.

(d) If no other takers, property passes under residuary clause or to transferor's heirs. Except as provided in subsection (e), if, after the application of subsections (b) and (c), there is no surviving taker, the property passes in the following order:

(1) If the trust was created in a nonresiduary devise in the transferor's will or in a codicil to the transferor's will, the property passes under the residuary clause in the transferor's will; for purposes of this section, the residuary clause is treated as creating a future interest under the terms of a trust;

(2) If no taker is produced by the application of paragraph (1), the property passes to the transferor's heirs under section 560:2-711.

(e) If no other takers and if future interest created by exercise of power of appointment. If, after the application of subsections (b) and (c), there is no surviving taker and if the future interest was created by the exercise of a power of appointment:

(1) The property passes under the donor's gift-in-default clause, if any, which clause is treated as creating a future interest under the terms of a trust; and

(2) If no taker is produced by the application of paragraph (1), the property passes as provided in subsection (d). For purposes of subsection (d), "transferor" means the donor if the power was a nongeneral power and means the donee if the power was a general power.

(f) Notwithstanding the foregoing, if a revocable inter vivos trust terminates on the death of the settlor of the trust and all the assets are to be distributed outright, sections 560:2-603 and 560:2-604 shall determine whether a gift has lapsed and who shall receive the property.

HRS § 560:2-707

Amended by L 2023, c 158,§ 31, eff. 6/29/2023.

L 1996, c 288, pt of §1; am L 2000, c 48, §2