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 For purposes of subsection (b), chapter 554B must be applied as if section 554B-6(b) thereof were repealed and sections 554B-2(e), 554B-9(b), and 554B-17(a) were amended to read as follows: