Date: Wed, 05 Feb 1997 08:21:53 -1000 From: lambda@aloha.net (Martin Rice) Subject: HAWAI`I HOUSE BILL 118 HOUSE DRAFT 1 SENATE DRAFT 1 (Part 1 of 2) Aloha kakahiaka kakou. Following is the Senate version of the amended House version of the original HB 118 that was introduced several days ago. This bill, along with SB 117 SD 1 will be debated this week. If either one of these bills passes out of the Senate, and since the original bills have been amended by the "receiving chamber," a joint conference will be established to review and "fine tune" before they head passed into law. Both chambers, of course, would have to vote on the revised bills. The Senate Judiciary vote on this bill was 4 in favor (Chumbley, Matsunaga, McCartney and Metcalf), 2 opposed (Bunda and Sakamoto) and 1 excused (Anderson). AGAIN, FELLOW CLIPPERS AND BROADCASTERS, PLEASE DO NOT REFORM THIS BILL, AS HAWAI`I RESIDENTS MAY NEED IT FOR TESTIMONIAL PURPOSES. MAHALO. ALSO NOTE: This portion, represents pages 1 through 15. Pages 16 through 30 will be broadcast as soon as they are keyed in. HOUSE OF REPRESENTIVES H.B. NO. 118 NINTEENTH LEGISLATURE, 1997 H.D. 1 STATE OF HAWAI`I S.D. 1 A BILL FOR AN ACT RELATING TO UNMARRIED COUPLES. BE IT ENACTED BY THE LEGISIATURE OF THE STATE OF HAWAI`I: 1 SECTION 1. The Hawai`i Revised Statutes is amended by adding 2 a new chapter to be appropriately designated and to read as 3 follows: 4 "CHAPTER 5 RECIPROCAL BENEFICIAIRIES 6
____-1 Purpose. The purpose of this chapter is to extend 7 certain rights and benefits which are presently available only to S married couples to couples composed of two individuals who are 9 legally prohibited from marrying under state law. 10
____-2 Findings. The legislature finds that the people of ll Hawai`i choose to preserve the tradition of marriage as a unique 12 social institution based upon the committed union of one man and 13 one woman. The legislature further finds that because of its l4 unique status marriage provides access to a multiplicity of 15 rights and benefits throughout our laws that are contingent upon l6 that status. As such, marriage should be subject to restrictions l7 such as prohibiting respective parties to a valid marriage 18 contract from standing in relation to each other, i.e. brother l9 and sisters of the half as well as to the whole blood, uncle and 20 niece, aunt and nephew. Page 2 H.B. NO. 118, H.D. 1, S.D. 1 1 However, the legislature Concurrently acknowledges that 2 there are many individuals who have significant personal, 3 emotional, and economic relationshjps with another individual yet 4 are prohibited by such legal restrictions from marrying. For 5 example, two individuals who are related to one another, such as d a widowed mother and her unmarried son, or two individuals who 7 are of the same gender. Therefore, the legislature believes that 8 certain rights and benefits presently available only to married 9 couples should be made available to couples comprised of two lO individuals who are legally prohibited from marrying one another. 11
____-3 Definition. For the purposes of this chapter: 12 "Declaration of reciprocal beneficiary relationship" means a 13 statement in a form issued by the director that declares the l4 intent of two people to enter into a relationship. By signing 15 it, two people swear under penalty of perjury that they meet the l6 requirements for a valid reciprocal beneficiary relationship. 17 "Director" means the director of health. 18 "Reciprocal beneficiaries" means two adults who are parties l9 to a valid reciprocal beneficiary relationship and meet the 20 requisites for a valid reciprocal beneficiary relationship as 2l deflned in section____-4. 22
____-4 Requisites of a valid reciprocal beneficiary 23 relationship. In order to enter into a valid reciprocal 24 beneficiary relationship, it shall be necessary that; Page 3 H.B. NO. 118, H.D. 1, S.D. 1 1 (1) Each of the parties be at least eighteen years old; 2 (2) Each of the parties establish residency in Hawaii for a 3 period of one year; 4 (3) Neither of the parties be married nor a party to S another reciprocal beneficiary relationship; 6 (4) The parties be legally prohibited from matrying one 7 another under chapter 572; 8 (5) Consent of either party to the reciprocal beneficiary 9 relationship has not been obtained by force, duress, or 10 fraud; and 11 (6) Each of the parties sign a declaration of reciprocal 12 beneficiary relationship as provided in section____-5. 13
____-5 Registration an reciprocal beneficiaries; filing l4 fees; records. (a) Two persons, who meet the criteria set out 15 in section____-4, may register as reciprocal beneficiaries by l6 filing a signed notarized declaration of reciprocal beneficiaries l7 with the director. For the filing of the declaration, the 18 director shall collect a fee of $8, which shall be remitted to l9 the director of finance for deposit into the general fund. 20 (b) Upon the payment of the fee, the director shall file 21 the declaration and provide a certificate of reciprocal 22 beneficiary to each party named on the certificate. The director Page 4 H.B. NO. 118, H.D. 1, S.D. 1 1 shall maintain a record of each certificate of reciprocal 2 beneficiary relationship filed with the department. 3
____-6 Rights and obligatlons. Upon the issuance at a 4 certificate of reciprocal beneficiary relationship, the parties 5 named in the certificate shall be entitled to those rights and 6 obligations provided by the law to reciprocal beneficiaries. 7 Unless otherwise expressly provided by law, reciprocal 8 beneficiarles shall not have the same rights and obligations 9 under the law that are conferred through marriage under chapter 10 572. 11
____-7 Termination of reciprocal beneficiary relationship; 12 filing fees and records; termination upon marriage. (a) A l3 reciprocal beneficiary relationship shall be terminated upon the 14 filing of a signed notarized declaration of termination of 15 reciprocal beneficiary relationship by either of the reciprocal l6 beneficiaries with the director. For the filing of the l7 declaration, the director shall collect a fee of $8, which shall I8 be remitted to the director of finance for deposit into the l9 general fund. 20 (b) Upon the payment of the fee, the director shall tile 22 the declaration and issue a certificate of termination of 23 reciprocal beneficiary relationship to each party named as 24 reciprocai beneficiaries. The director shall maintain a record Page 5 H.B. NO. 118, H.D. 1, S.D. 1 1 of each declaration of termination of reciprocal beneficiary 2 relationship filed with the department, 3 (c) Any marriage license subsequently issued by the 4 department to any individual registered as a reciprocal 5 beneficiary shall automatically terminate the individual's 6 existing reciprocal beneficiary relationship. Upon termination, 7 the parties shall no longer have a reciprocal beneficiary 8 relationship and shall no longer be entitled to the rights and 9 benefits of reciprocal beneficiaries." 10 SECTION 2. Chapter 323, Hawaii Revised Statutes, is amended 1l by adding a new section to be appropriately designated and to l2 read as follows: 13 "
323-____ Hospital visitation policy and extension of 14 authority to reciprocal beneficiaries. A recinrocal beneticiary 15 as defined in chapter____, of patient have the same 16 rights as a spouse with respect to visitation and making health l7 care decisions for the patient." 18 SECTION 3. Section 431:1OA-103, Hawai`i Revised Statutes, is l9 amended to read as follows: 20 "
431:1OA-103 Family coverage defined. As used in this 2l part, family coverage means a policy that insures, originally or 22 upon subsequent amendment, an adult member of a family who shall 23 be deemed the policyholder and any two or more eligible members Page 6 H.B. NO. 118, H.D. 1, S.D. 1 1 of that family, including spouse, dependent children or any 2 children under a specified age which shall not exceed nineteen 3 years, [and] any other person dependent upon the policyholder[,] 4 and reciprocal beneficiaries of the same gender registered 5 pursuant to chapter____." 6 SECTION 4 Section 509-2, Hawai`i Revised Statutes, is 7 amended to read as follows: 8 "
509-3 Creation of joint tenancy, tenancy by the entirety, 9 and tenancy in common. (a) Land, or any interest therein, or lO any other type of property or property rights or interests or 11 interest therein, may be conveyed by a person to oneself and l2 another or others as joint tenants, or by a person to oneself and l3 one's spouse[,] or reciprocal beneficiary, or by spouses to l4 themselves, or by reciprocal beneficiaries to themselves, as 15 tenants by the entirety, or by joint tenants to themselves and l6 another or others as joint tenants, or tenants in common to 17 themselves or to t;hemselves and another or others as joint 18 tenants, or by tenants by the entirety to themselves or 19 themselves and another or others as joint tenants or as tenants 20 in common, or by one tenant by the entirety to the tenant's 21 spouse reciprocal beneficiary of all of the tenant's interest 22 or interests, without the necessity of conveying through a third 23 party, and each such instrument shall be construed as validly Page 7 H.B. NO. 118, H.D. 1, S.D. 1 1 creating a joint tenancy, tenancy by the entirety, tenancy in 2 common, or single ownership, as the case may be, if the tenor of 3 the instrument manifestly indicates such intention. 4 (b) For the purposes of this chapter: 5 "Reciprocal beneficiary" means an adult who is a party to a 6 registered reciprocal beneficiary relationship in accordance with 7 chapter____, and has a valid certificate of reciprocal 8 beneficiary relationship that has not been terminated, 9 "Spouse" means persons legally married to each other under lO chapter 572." 11 SECTION 5. Section 560:2-201, Hawai`i Revised Statutes, is l2 amended by adding two new definitions to be appropriately l3 inserted and to read as follows: 14 "Reciprocal beneficiary" means an adult who is a party to a 15 registered reciprocal beneficiary relationship in accordance with l6 chapter____, and has a valid certificate of reciprocal 17 beneficiary relationship that has not been terminated. 18 "Reciprocal beneficiary relationship" is the registered l9 status of two adults defined in chapter____." 20 SECTION 6. Section 560:2-202, Hawai`i Revised Statutes, is 21 amended to read as follows: 22 "
560:2-202 Elective share. (a) Elective-share amount. 23 The surviving spouse or reciprocal beneficiary of a decedent who Page 8 H.B. NO. 118, H.D. 1, S.D. 1 1 dies domiciled in this State has a right of election, under the 2 limitations and conditions stated in this part, to take an 3 elective-share amount equal to the value of the elective-share 4 percentage of the augmented estate, determined by the length of 5 time the spouse and the decedent were married to each other, or 6 the reciprocal beneficiary and the decedent were in a reciprocal 7 beneficiary relationship, in accordance with the following 8 schedule: 9 If the decedent and the 10 spouse were married to 11 each other[:], or the 12 decedent and the reciprocal 13 beneficiary were in a The elective-share 14 relationship: percentage is: l5 Less than 1 year Supplemental amount only. 16 1 year but less than 2 years 3% of the augraented estate. 17 2 years but less than 3 years 6% of the augmented estate4 18 3 years but less than 4 years 9% of the augmented estate. 19 4 years but less than 5 years 12% of the augmented estate. 20 5 years but less than 6 years 15% of the augmented estate. 21 6 years but less than 7 years 18% of the augmented estate. 22 7 years but less than 8 years 21% of the augmented estate. 23 8 years but less than 9 years 24% of the augmented estate. Page 8 H.B. NO. 118, H.D. 1, S.D. 1 1 9 years but less than 10 years 27% of the augmented estate. 2 10 years but less than 11 years 30% of the augmented estate. 3 11 years but less than 12 years 34% of the augmented estate. 4 12 years but less than 13 years 38% of the augmented estate. 5 13 years but less than 14 years 42% of the augmented estate. 6 14 years but less than 15 years 46% of the augmented estate. 7 15 years or more 50% at the augmented estate; 8 provided, however, the surviving spouse or recipracal beneficiary 9 may elect to take a share smaller than that to which the surviving lO spouse or reciprocal beneficiary is entitled hereunder. 11 (b) Supplemental elective-share amount. If the sum of the l2 amounts described in sections 560:2-207, 560:2-209(a)(1), and 13 that part of the elective-share amount payable from the l4 decedent's probate estate and nonprobate transfers to others l5 under section 560:2-209(b) and (c) is less than $50,000, the l6 surviving spouse or reciprocal beneficiary is entitled to a l7 supplemental elective-share amount equal to $50,000 minus the sum 18 of the amounts described in those sections. The supplemental l9 electlve-share amount is payable from the decedent's probate 20 estate and from recipients of the decedent's nonprobate transfers 21 to others in the order of priority set forth in section 22 560:2-209(b) and (c). 23 (c) Effect of election an statutory benefits. If the right Page 10 H.B. NO. 118, H.D. 1, S.D. 1 1 of election is exercised by or on behalf of the surviving 2 spouser[,] or reciprocal beneficiary, the surviving spouse's or 3 reciprocal beneficiary's homestead allowance, exempt property, 4 and family allowance, if any, are not charged against but are in 5 addition to the elective-share and supplemental elective-share 6 amounts. 7 (d) Non-domiciliary. The right, if any, of the surviving 8 spouse or reciprocal beneficiary of a decedent who dies domiciled 9 outside this State to take an elective share in property in this lO state is governed by the law of the decedent's domicile at 11 death." 12 SECTION 7. Section 560:2-208, Hawai`i Revised Statutes, is l3 amended by amending subsection (a) to read as follows: 14 "(a) Exclusions; 15 (1) The value of any property is excluded from the 16 decedent's nonprobate transfers to others: 17 (A) To the extent the decedent received adequate and 18 full consideration in money or money's worth for a 19 transfer of the property; or 20 (B) If the property was transferred with the written 21 joinder of, or if the transfer was consented to in 22 writing by, the surviving spouse[.] or reciprocal 23 beneficiary. Page 11 H.B. NO. 118, H.D. 1, S.D. 1 1 (2) The augmented estate shall not include the value of any 2 property that either; 3 (A) Is held in a trust created and funded by any party 4 other than the decedent [or], the surviving 5 5pouse[;], or the reciprocal beneficiary; or 6 (B) Was received by either spouse during marriage or 7 either reciprocal beneficiary during a reciprocal 8 beneficiary relationship, by gift, devise, 9 inheritance or distribution from a trust created 10 and funded by any party other than the decedent 11 [or], the surviving spouse, or the reciprocal 12 beneficiary; provided that such property was kept 13 segregated from property includable in the 14 augmented estate," 15 SECTION 8. Section 560:2-209, Hawai`i Revised Statutes, is 16 amended by amending subsections (a) and (b) to read as follows: 17 (a) In a proceeding for an elective share, the following 18 are applied first to satisfy the elective-share amount and to l9 reduce or eliminate any contributions due from the decedent's 20 probate estate and recipients of the decedent's nonprobate 21 transfers to others: 22 (1) Amounts included in the augmented estate under section 23 560:2-204 which pass or have passed to the surviving Page 12 H.B. NO. 118, H.D. 1, S.D. 1 1 spouse or reciprocal beneficiary by testate or 2 intestate succession and amounts included in the 3 augmented estate under section 560:2-206; and 4 (2) Amounts included in the augmented estate under section 5 560:2-207 up to the applicable percentage thereof. For 6 the purposes of this subsection, the "applicable 7 percentage" is twice the elective-share percentage set S forth in the schedule in section 560:2-202(a) 9 appropriate to the length of time [the]: 10 (A) The spouse and the decedent were married to each 11 other[.]; or 12 (B) The reciprocal beneficiary and the decedent were 13 in a reciprocal beneficiary relationship. 14 (b) If, after the application of subsection (a), the 15 elective-share amount is not fully satisfied or the surviving l6 spouse or reciproca1 beneficiary is entitled to a supplemental l7 elective-share amount, amounts included in the decedent's probate 18 estate and in the decedent's nonprobate transfers to others, l9 other than amounts included under section 560:2-205(3) (A) or (C), 20 are applied first to satisfy the unsatisfied balance of the 21 elective-share amount or the supplemental elective-share amount. 22 The decedent's probate estate and that portion of the decedent's 23 nonprobate transfers to others are so applied that liability for Page 13 H.B. NO. 118, H.D. 1, S.D. 1 1 the unsatisfied balance of the elective-share amount or for the 2 supplemental elective-share amount is equitably apportioned among 3 the recipients of the decedent's probate estate and at that 4 portion of the decedent's nonprobate transfers to others in 5 proportion to the value of their interests therein." 6 SECTION 9. Section 560:2-301, Hawai`i Revised Statutes, is 7 amended to read as follows: 8 "
560:2-301 Entitlement of spouse[;] or reciprocal 9 beneficiary; prmarital will. (a) If a testator's surviving lO spouse married the testator, or the testator's reciprocal l1 beneficiary entered into a reciprocal beneficiary relationship l2 with the testator, after the testator executed the testator's 13 will, the surviving spouse or reciprocal beneficiary is entitled l4 to receive, as an intestate share, no less than the value of the l5 share of the estate the spouse or reciprocal beneficiary would l6 have received if the testator had died Intestate as to that l7 portion of the testator's estate, if any, that neither is devised 18 to a child of the testator who was born before the testator l9 marrled the surviving spouse or entered into a reciprocal 20 beneficiary relationship with the surviving reciprocal 21 beneficiary and who is not a child of the surviving spouse or 22 reciprocal beneficiary, nor is devised to a descendant of such a 23 child or passes under section 560:2-603 or 560:2-604 to such a Page 14 H.B. NO. 118, H.D. 1, S.D. 1 1 child or to a descendant of such a child, unless: 2 (1) It appears from the will or other evidence that the 3 will was made in contemplation of [the]: 4 (A) The testator's marriage to the surviving spouse; 5 or 6 (B) The testator's entering into a reciprocal 7 beneficiary relationship with the reciprocal 8 beneficiary; 9 (2) The will expresses the intention that it is to be 10 effective notwithstanding any subsequent marriage[;], 11 or reciprocal beneficiary relationstip; or 12 (3) The testator provided for the spouse or reciprocal 13 beneficiary by transfer outside the will and the intent 14 that the transfer be in lieu of a testamentary 15 provision is shown by the testator's statements or is 16 reasonably inferred from the amount of the transfer or 17 other evidence. 18 (b) In satisfying the share provided by this section, l9 devises made by the will to the testator's surviving spouse, or 20 reciprocai beneficiary, it any, are applied first, and other 2l devises, other than a devise to a child of the testator who was 22 born before the testator married the surviving spouse, entered 23 a reciprocal beneficiary relationship with the reciprocal Page 15 H.B. NO. 118, H.D. 1, S.D. 1 1 beneficlary, and who is not a child of the surviving spouse or 2 reciprocai beneficiary, or a devise or substitute gift under 3 section 560:2-603 or 560:2-604 to a descendant of such a child, 4 abate as provided in section 560:3-902." 5 SECTION 10. Section 560:2-7l1, Hawai`i Revised Statutes, is 6 amended to read as follows: 7 "
550:2-711 Interest in "heirs" and like. If an applicable 8 atatute or a governing instrument calls for a present or future 9 distribution to or creates a present or future interest in a lO designated individual's "heirs", "heirs at law", "next of kin", 11 "relatIves", or "family", or language of similar import, the l2 property passes to those persons, including the State, and in l3 such shares as would succeed to the designated individual's l4 intestate estate under the intestate succession law of the 15 designated individual's domicile if the designated individual l6 died when the disposition is to take effect in possession or l7 enjoyment. If the designated individual's surviving spouse or 18 reciprocal beneficiary is living but is remarried or has l9 termtinated the reciprocal beneficiary relationship at the time 20 the disposition is to take effect in possession or enjoyment, the 21 surviving spouse or reciprocal beneficiary is not an heir of the 22 designated individual." 23 SECTION 11. Section 560:2-802, Hawai`i Revised Statutes, is ~~pau Part 1 of 2~~ ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ "The House [of Representatives] is a corrupt institution." --Newt Gingrich Esquire, 10/89 "I am a creature of the House." --Newt Gingrich The Atlantic, 6/93 ~~~~~ Fred and Martin 24 years, yet strangers before the law ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~