§560:2-212  Right of election personal to
surviving spouse or reciprocal beneficiary; incapacitated surviving spouse or
reciprocal beneficiary.  (a)  Surviving spouse or reciprocal beneficiary
must be living at time of election.  The right of election may be exercised
only by a surviving spouse or reciprocal beneficiary who is living when the
petition for the elective share is filed in the court under section
560:2-211(a).  If the election is not exercised by the surviving spouse or
reciprocal beneficiary personally, it may be exercised on the surviving
spouse's or reciprocal beneficiary's behalf by the spouse's or reciprocal
beneficiary's conservator, guardian, or agent under the authority of a power of
attorney.



(b)  Incapacitated surviving spouse or reciprocal
beneficiary.  If the election is exercised on behalf of a surviving spouse or
reciprocal beneficiary who is an incapacitated person, that portion of the
elective-share and supplemental elective-share amounts due from the decedent's
probate estate and recipients of the decedent's nonprobate transfers to others
under section 560:2-209(b) and (c) must be placed in a custodial trust for the
benefit of the surviving spouse or reciprocal beneficiary under chapter 554B,
except as modified below.  For the purposes of this subsection, an election on
behalf of a surviving spouse or reciprocal beneficiary by an agent under a
durable power of attorney is presumed to be on behalf of a surviving spouse or
reciprocal beneficiary who is an incapacitated person.  For purposes of the
custodial trust established by this subsection:



(1)  The electing guardian, conservator, or agent is
the custodial trustee;



(2)  The surviving spouse or reciprocal beneficiary is
the beneficiary; and



(3)  The custodial trust is deemed to have been
created by the decedent spouse or reciprocal beneficiary by written transfer
that takes effect at the decedent spouse's or reciprocal beneficiary's death
and that directs the custodial trustee to administer the custodial trust as one
created for the benefit of an incapacitated beneficiary.



(c)  Custodial trust.  For purposes of
subsection (b), chapter 554B must be applied as if section 554B-6(b) thereof
were repealed and sections 554B-2(e), 554B-9(b), and 554B-17(a) were amended to
read as follows:



(1)  Neither an incapacitated beneficiary nor anyone
acting on behalf of an incapacitated beneficiary has a power to terminate the
custodial trust; but if the beneficiary regains capacity, the beneficiary then
acquires the power to terminate the custodial trust by delivering to the
custodial trustee a writing signed by the beneficiary declaring the
termination.  If not previously terminated, the custodial trust terminates on
the death of the beneficiary;



(2)  If the beneficiary is incapacitated, the custodial
trustee shall expend so much or all of the custodial trust property as the
custodial trustee considers advisable for the health, education, maintenance
and support of the beneficiary and individuals who are legally entitled to
support by the beneficiary. Expenditures may be made in the manner, when, and
to the extent that the custodial trustee determines suitable and proper,
without court order but with regard to other support, income, and property of
the beneficiary and benefits of medical or other forms of assistance from any
state or federal government or governmental agency for which the beneficiary
must qualify on the basis of need; provided that the custodial trustee shall
not make any distributions of the principal of the custodial trust unless the
custodial trustee determines, in the trustee's discretion, that the remaining
assets of the surviving spouse or reciprocal beneficiary cannot or should not
be first used instead for the spouse's or reciprocal beneficiary's benefit. 
The custodial trustee may make such a determination when, for example, the sole
remaining asset of the surviving spouse or reciprocal beneficiary is the
spouse's or reciprocal beneficiary's residence, or similar factors would exist
that would make use or liquidation of the surviving spouse's or reciprocal
beneficiary's own assets inappropriate;



(3)  Upon the beneficiary's death, the custodial
trustee shall transfer the unexpended custodial trust property in the following
order:



(A)  Under the residuary clause, if any, of the
will of the beneficiary's predeceased spouse or reciprocal beneficiary against
whom the elective share was taken, as if that predeceased spouse or reciprocal
beneficiary died immediately after the beneficiary; or



(B)  To that predeceased spouse's or reciprocal
beneficiary's heirs under section 560:2-711. [L 1996, c 288, pt of §1; am L
1997, c 383, §19]