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Most gun owners are cognizant of the strict regulations concerning ownership of a firearm. However, their family members and heirs are often unaware of the laws governing the disposition of a firearm when the gun owner dies. The NY Secure Ammunition and Firearms Enforcement (SAFE) Act of 2013, enacted in response to the Sandy Hook shootings and the murder of two fire fighters in Webster, New York, amended many of New York's laws to provide stricter regulations, including guidelines and timeframes for safeguarding firearms after a gun owner has passed away. But in practice, do the new laws leave family members and heirs at risk of criminal liability?

The SAFE Act

The SAFE Act created a statewide database to track people who were issued gun licenses, closed loopholes regarding private gun sales, provided stricter gun storage requirements, and created more stringent penalties for people who are found guilty of illegally using or possessing a gun. S. 2230 (2013), http://open.nysenate.gov/legislation/bill/S2230-2013. The act established a statewide electronic license and record database which allows for regular matching by the state against records of prohibited persons (e.g., those with criminal histories, orders of protection, and mental illnesses that bar gun ownership and licensing) as well as against other databases, such as death records.

In the estate context, the act amended the New York Surrogate's Court Procedure Act (SCPA) to require estate fiduciaries to file a firearms inventory with the Surrogate's Court in order to settle the estate of a decedent who owned firearms. SCPA §2509 requires that the inventory be filed with the division of criminal justice services as another mechanism to ensure the state can track firearms at every transfer. The act also provided very specific timeframes for the handling of firearms owned by a person who has passed away. However, the regulations are such that loved ones carrying out a decedent's wishes can easily run afoul of the Penal Code.

Illegal Possession?

Specifically, when a licensed gun owner dies, the person in charge of the decedent's personal property would technically be in illegal possession of the decedent's gun and guilty of criminal possession of a weapon in the fourth degree. N.Y. Penal Law §265.01 (Consol. 2016). However, the law provides an exemption from criminal liability for an executor or administrator or any other lawful possessor of a decedent's firearm if, within 15 days of the death of the gun owner, the person in possession of a decedent's gun either (i) lawfully disposes of the gun; or (ii) turns the gun over to the police. N.Y. Penal Law §265.20(a)(1)(f) (Consol. 2014). Failure to do so can result in a charge of criminal possession of a weapon in the fourth degree, a class A misdemeanor, punishable by up to one year in jail or three years of probation, and a $1,000 fine. N.Y. Penal Law §265.01 (Consol. 2016); N.Y. Penal Law §70.15 (Consol. 2016); N.Y. Penal Law §80.05 (Consol. 2017).

Interestingly, the law states that the exemption to liability for criminal possession of a weapon in the fourth degree exists for an executor, administrator or “other lawful possessor” of a decedent's firearm. N.Y. Penal Law §265.20(a)(1)(f) (Consol. 2014). As the drafters were likely aware that an executor or administrator would not be formally appointed by the Surrogate's Court within 15 days of a decedent's death, the law provides that any person lawfully in possession of a decedent's gun would be responsible for adhering to this regulation. Thus, it is also likely that a person in possession of a decedent's gun could be criminally liable if a decedent's firearms are not turned over to the police, even if that person is not a nominated executor or proposed administrator of a decedent's estate.

Consider the following example: Harry is married to Sally and they have an adult child, Tom. Harry owns guns that he stores in the home he shares with Sally. Tom resides in his own home nearby. Tom is the nominated executor of Harry's last will and testament. When Harry dies, Sally and Tom could both be responsible for lawfully disposing of or turning Harry's firearms over to the police within 15 days. Further, it is unclear if both Sally and Tom could be criminally liable for failing to adhere to the law as Sally is in lawful possession of the guns since they are stored in the home she shared with Harry but Tom is the nominated executor of Harry's last will and testament.

Not only does the law provide a very short 15-day period to dispose of or turn over the firearm to police, but it also makes it difficult to understand how to lawfully dispose of a decedent's gun. The New York Penal Code does not define the process to lawfully dispose of a gun after the death of the original gun owner. However, New York General Business Law §898 provides that, in addition to any other requirements pursuant to state and federal law, the disposal of firearms must be conducted by a licensed firearm dealer, but that an exception exists for transfers between “immediate family members,” defined as spouses, domestic partners, children and step-children.

Of course, the person receiving a decedent's firearm must also have a valid license to possess a gun in the state of New York. The involvement of a licensed dealer makes it almost impossible for “lawful disposal” to occur in the case of non-family transfers within 15 days and, as such, a decedent's firearms will generally be required to be turned over to the police in such cases. It should be noted that if a gun is not legally transferred within one year of the police's receipt, the firearm will be declared a “nuisance” and the police must render it ineffective or destroy it altogether. N.Y. Penal Law §400.05(2) (Consol. 2017).

Guns in Wills

Further, even if a decedent has written a last will and testament which gives the gun to a specific beneficiary, the person in charge of a decedent's belongings cannot simply give the firearm to the beneficiary without potential criminal liability.( Instead, the person in charge of a decedent's personal belongings must: (i) know the decedent legally owned the gun; ii) know that the specific beneficiary has a license to legally own a firearm; and (iii) adhere to proper transfer procedures. N.Y. Penal Law §400.00 (Consol. 2016); N.Y. Penal Law §400.05(6) (Consol. 2017).

Consider the following example: Joseph's father, Donald, died one week ago. Prior to his death, Donald resided with his wife, Margaret, and owned several guns, some of which were very valuable. Donald had a last will and testament nominating his son, Edward, as executor and giving Joseph, his firearms. Joseph was licensed to possess guns in New York. Joseph did not want to turn Donald's guns over to the police as he was fearful that the valuable guns would not be lawfully transferred within one year and could be subject to destruction. Because Joseph acted quickly, his legal counsel was able to contact his local county police department to lawfully transfer Donald's guns to Joseph within the 15-day time period. Joseph was advised to provide a copy of Donald's will, a letter of authorization from Edward stating that Donald's guns should be transferred to Joseph pursuant to Donald's will as well as a copy of Joseph's license to possess a firearm. The local police department accepted the documents and lawfully transferred Donald's guns to Joseph.

It is important to note that this situation is likely the exception and not the general rule. Since Edward was not yet formally appointed as the executor of Donald's Estate, it was determinative that this police department accepted the letter of authorization from Edward, a nominated executor, and did not require the court to formally appoint an estate fiduciary in order to effectuate the transfer. Further, since Joseph was an “immediate family member” as defined by the General Business Law §898, there was no requirement that a licensed firearm dealer be involved. Since Joseph acted quickly, neither Joseph, Margaret nor Edward faced criminal liability for failure to adhere to the 15-day rule.

While the SAFE Act contains a great deal of common sense gun licensing, tracking and transferring regulations, certain aspects of the law put an unfair burden on unsuspecting family members and heirs upon the death of a firearm owner and a clear risk of criminal liability.

Jennifer B. Cona is the founder and managing partner of Genser Cona Elder Law located in Melville. Roseanne Beovich, an associate at the firm, assisted in the preparation of this article.