Title 10 — Armed Forces

Part II · Chapter 53 — Miscellaneous Rights and Benefits

§ 1044d. Military testamentary instruments: requirement for recognition by States

Statutory text

Testamentary Instruments To Be Given Legal Effect.—

A military testamentary instrument—

is exempt from any requirement of form, formality, or recording before probate that is provided for testamentary instruments under the laws of a State; and

has the same legal effect as a testamentary instrument prepared and executed in accordance with the laws of the State in which it is presented for probate.

Military Testamentary Instruments.—

For purposes of this section, a military testamentary instrument is an instrument that is prepared with testamentary intent in accordance with regulations prescribed under this section and that—

is executed in accordance with subsection (c) by (or on behalf of) a person, as a testator, who is eligible for military legal assistance;

makes a disposition of property of the testator; and

takes effect upon the death of the testator.

Requirements for Execution of Military Testamentary Instruments.—

An instrument is valid as a military testamentary instrument only if—

the instrument is executed by the testator (or, if the testator is unable to execute the instrument personally, the instrument is executed in the presence of, by the direction of, and on behalf of the testator);

the execution of the instrument is notarized by—

a military legal assistance counsel;

a person who is authorized to act as a notary under section 1044a of this title who—

is not an attorney; and

is supervised by a military legal assistance counsel; or

a State-licensed notary employed by a military department or the Coast Guard who is supervised by a military legal assistance counsel;

the instrument is executed in the presence of at least two disinterested witnesses (in addition to the person notarizing the instrument in accordance with paragraph (2)), each of whom attests to witnessing the testator’s execution of the instrument by signing it; and

the instrument is executed in accordance with such additional requirements as may be provided in regulations prescribed under this section.

Self-Proving Military Testamentary Instruments.—

If the document setting forth a military testamentary instrument meets the requirements of paragraph (2), then the signature of a person on the document as the testator, an attesting witness, a notary, or the presiding attorney, together with a written representation of the person’s status as such and the person’s military grade (if any) or other title, is prima facie evidence of the following:

That the signature is genuine.

That the signatory had the represented status and title at the time of the execution of the will.

That the signature was executed in compliance with the procedures required under the regulations prescribed under subsection (f).

A document setting forth a military testamentary instrument meets the requirements of this paragraph if it includes (or has attached to it), in a form and content required under the regulations prescribed under subsection (f), each of the following:

A certificate, executed by the testator, that includes the testator’s acknowledgment of the testamentary instrument.

An affidavit, executed by each witness signing the testamentary instrument, that attests to the circumstances under which the testamentary instrument was executed.

A notarization, including a certificate of any administration of an oath required under the regulations, that is signed by the notary or other official administering the oath.

Statement To Be Included.—

Under regulations prescribed under this section, each military testamentary instrument shall contain a statement that sets forth the provisions of subsection (a).

Paragraph (1) shall not be construed to make inapplicable the provisions of subsection (a) to a testamentary instrument that does not include a statement described in that paragraph.

Regulations.—

Regulations for the purposes of this section shall be prescribed jointly by the Secretary of Defense and by the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Department of the Navy.

Definitions.—

In this section:

The term “person eligible for military legal assistance” means a person who is eligible for legal assistance under section 1044 of this title.

The term “military legal assistance counsel” means—

a judge advocate (as defined in section 801(13) of this title); or

a civilian attorney serving as a legal assistance officer under the provisions of section 1044 of this title.

The term “State” includes the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, and each possession of the United States.

Legislative history

Reconstructed from this section’s Code source credit and amendment notes, resolved against the local Statutes at Large. Editorial notes are evidence, not the law that made the change.

2000
Pub. L. 106–398 § 1(dA) · 114 Stat. 1654
Enacted · 10 U.S.C. § 1044d
Added Pub. L. 106–398, § 1 [[div. A], title V, § 551(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–123
Source evidence
Code source credit
Added Pub. L. 106–398, § 1 [[div. A], title V, § 551(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–123
Enacted provision · exact public law section
SECTION 1. ENACTMENT OF FISCAL YEAR 2001 NATIONAL DEFENSE AUTHORIZATION ACT. The provisions of H.R. 5408 of the 106th Congress, as introduced on October 6, 2000, are hereby enacted into law.
2002
Homeland Security Act of 2002
Pub. L. 107–296 title XVII § 1704(b)(1) · 116 Stat. 2135
Substituted · 10 U.S.C. § 1044d(f)
Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”
Source evidence
Code amendment note
Subsec. (f). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.
Enacted provision · exact public law section
(1) Title 10, United States Code, is amended in sections 101(9), 130b(a), 130b(c)(4), 130c(h)(1), 379, 513(d), 575(b)(2), 580(e)(6), 580a(e), 651(a), 671(c)(2), 708(a), 716(a), 717, 806(d)(2), 815(e), 888, 946(c)(1), 973(d), 978(d), 983(b)(1), 985(a), 1033(b)(1), 1033(d), 1034, 1037(c), 1044d(f), 1058(c), 1059(a), 1059(k)(1), 1073(a), 1074(c)(1), 1089(g)(2), 1090, 1091(a), 1124, 1143, 1143a(h), 1144, 1145(e), 1148, 1149, 1150(c), 1152(a), 1152(d)(1), 1153, 1175, 1212(a), 1408(h)(2), 1408(h)(8), 1463(a)(2), 1482a(b), 1510, 1552(a)(1), 1565(f), 1588(f)(4), 1589, 2002(a), 2302(1), 2306b(b), 2323(j)(2), 2376(2), 2396(b)(1), 2410a(a), 2572(a), 2575(a), 2578, 2601(b)(4), 2634(e), 2635(a), 2734(g), 2734a, 2775, 2830(b)(2), 2835, 2836, 4745(a), 5013a(a), 7361(b), 10143(b)(2), 10146(a), 10147(a), 10149(b), 10150, 10202(b), 10203(d), 10205(b), 10301(b), 12103(b), 12103(d), 12304, 12311(c), 12522(c), 12527(a)(2), 12731(b), 12731a(e), 16131(a), 16136(a), 16301(g), and 18501 by striking “of Transportation” each place it appears and inserting “of Homeland Security”.
Effective date note
Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.
2016
National Defense Authorization Act for Fiscal Year 2017
Pub. L. 114–328 § 523(a)(1) · 130 Stat. 2000
1. Added · 10 U.S.C. § 1044d(c)(2)
  Pub. L. 114–328, § 523(a)(1), added par. (2)
2. Struck · 10 U.S.C. § 1044d(c)(2)
  Pub. L. 114–328, § 523(a)(1), struck out former par. (2) which read as follows: “the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;”
Source evidence
Code amendment note
Subsec. (c)(2). Pub. L. 114–328, § 523(a)(1), added par. (2) and struck out former par. (2) which read as follows: “the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;”.
Enacted provision · exact public law section
(1) by striking paragraph (2) and inserting the following: “(2) the execution of the instrument is notarized by— “(A) a military legal assistance counsel; “(B) a person who is authorized to act as a notary under section 1044a of this title who— “(i) is not an attorney; and “(ii) is supervised by a military legal assistance counsel; or “(C) a State-licensed notary employed by a military department or the Coast Guard who is supervised by a military legal assistance counsel;” ; and
2016
National Defense Authorization Act for Fiscal Year 2017
Pub. L. 114–328 § 523(a)(2) · 130 Stat. 2000
Substituted · 10 U.S.C. § 1044d(c)(3)
Pub. L. 114–328, § 523(a)(2), substituted “person notarizing the instrument in accordance with paragraph (2)” for “presiding attorney”
Source evidence
Code amendment note
Subsec. (c)(3). Pub. L. 114–328, § 523(a)(2), substituted “person notarizing the instrument in accordance with paragraph (2)” for “presiding attorney”.
Enacted provision · exact public law section
(2) in paragraph (3), by striking “presiding attorney” and inserting “person notarizing the instrument in accordance with paragraph (2)”.

5 of 5 references resolved to an enrolled provision

Editorial Notes

Amendments2002–2016 · 2 rounds

2016

Subsec. (c)(2). Pub. L. 114–328, § 523(a)(1), added par. (2) and struck out former par. (2) which read as follows: “the instrument is executed in the presence of a military legal assistance counsel acting as presiding attorney;”.

Subsec. (c)(3). Pub. L. 114–328, § 523(a)(2), substituted “person notarizing the instrument in accordance with paragraph (2)” for “presiding attorney”.

2002

Subsec. (f). Pub. L. 107–296 substituted “of Homeland Security” for “of Transportation”.

Statutory Notes and Related Subsidiaries

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Credits

2000–2016 · 3 acts

2000Added Pub. L. 106–398, § 1 [[div. A], title V, § 551(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–123
2002amended Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314
2016Pub. L. 114–328, div. A, title V, § 523(a), Dec. 23, 2016, 130 Stat. 2116.

Show as published

(Added Pub. L. 106–398, § 1 [[div. A], title V, § 551(a)], Oct. 30, 2000, 114 Stat. 1654, 1654A–123; amended Pub. L. 107–296, title XVII, § 1704(b)(1), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 114–328, div. A, title V, § 523(a), Dec. 23, 2016, 130 Stat. 2116.)