§ 15-11-606. Nonademption of Specified Devises – Unpaid Proceeds of Sale, Condemnation, or Insurance – Sale by Conservator or Agent

1. A specific devisee has a right to the specifically devised property in the testator’s estate at death and:
   1. Any balance of the purchase price, together with any security agreement, owing from a purchaser to the testator at death by reason of sale of the property;
   2. Any amount of a condemnation award for the taking of the property unpaid at death;
   3. Any proceeds unpaid at death on fire or casualty insurance on or other recovery for injury to the property;
   4. Property owned by the testator at death and acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest for a specifically devised obligation;
   5. Real or tangible personal property owned by the testator at death which the testator acquired as a replacement for specifically devised real or tangible personal property; and
   6. If not covered by any of paragraphs (a) to (e) of this subsection (1), a general pecuniary devise equal to the value as of its date of disposition of other specifically devised property disposed of during the testator’s lifetime, but only to the extent it is established that ademption would be inconsistent with the testator’s manifested plan of distribution or that at the time the will was made, the date of disposition, or otherwise, the testator did not intend ademption of the devise.
2. If specifically devised property is sold or mortgaged by a conservator or by an agent acting within the authority of a durable power of attorney for an incapacitated principal, or if a condemnation award, insurance proceeds, or recovery for injury to the property is paid to a conservator or to an agent acting within the authority of a durable power of attorney for an incapacitated principal, the specific devisee has the right to a general pecuniary devise equal to the net sale price, the amount of the unpaid loan, the condemnation award, the insurance proceeds, or the recovery.
3. The right of a specific devisee under subsection (2) of this section is reduced by any right the devisee has under subsection (1) of this section.
4. For the purposes of the references in subsection (2) of this section to a conservator, subsection (2) of this section does not apply if after the sale, mortgage, condemnation, casualty, or recovery it was adjudicated that the testator’s incapacity ceased and the testator survived the adjudication by one year.
5. For the purposes of the references in subsection (2) of this section to an agent acting within the authority of a durable power of attorney for an incapacitated principal, (i) “Incapacitated principal” means a principal who is an incapacitated person, (ii) no adjudication of incapacity before death is necessary, and (iii) the acts of an agent within the authority of a durable power of attorney are presumed to be for an incapacitated principal.

Source: L. 94: Entire part R&RE, p. 1007, § 3, effective July 1, 1995. L. 2014: (1)(f) amended, (HB 14-1322), ch. 296, p. 1233, § 3, effective August 6.

Editor’s note: This section is similar to former § 15-11-608 as it existed prior to 1995.