senate Bill S4779A

Signed By Governor
2013-2014 Legislative Session

Relates to inheritance by children conceived after the death of a genetic parent

download bill text pdf

Sponsored By

Archive: Last Bill Status Via A7461 - Signed by Governor


  • Introduced
  • In Committee
  • On Floor Calendar
    • Passed Senate
    • Passed Assembly
  • Delivered to Governor
  • Signed by Governor

do you support this bill?

Actions

view actions (16)
Assembly Actions - Lowercase
Senate Actions - UPPERCASE
Nov 21, 2014 signed chap.439
Nov 10, 2014 delivered to governor
Jun 20, 2014 returned to assembly
passed senate
3rd reading cal.192
substituted for s4779b
Jun 20, 2014 substituted by a7461a
Mar 04, 2014 advanced to third reading
Mar 03, 2014 2nd report cal.
Feb 27, 2014 1st report cal.192
Jan 31, 2014 print number 4779b
amend and recommit to judiciary
Jan 08, 2014 referred to judiciary
May 16, 2013 print number 4779a
amend and recommit to judiciary
Apr 23, 2013 referred to judiciary

Votes

view votes

Bill Amendments

Original
A
B (Active)
Original
A
B (Active)

S4779 - Bill Details

See Assembly Version of this Bill:
A7461
Law Section:
Estates, Powers and Trusts Law
Laws Affected:
Add §4-1.3, amd §11-1.5, EPT L

S4779 - Bill Texts

view summary

Relates to inheritance by children conceived after the death of a genetic parent.

view sponsor memo
BILL NUMBER:S4779

TITLE OF BILL: An act to amend the estates, powers and trusts law, in
relation to rights of a child conceived after the death of a genetic
parent of such child

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.

This measure would amend the Estates, Powers and Trusts Law ("EPTL")
to provide rules governing the status, for purposes of inheritance and
participation in certain dispositions in instruments including wills
and trusts, of children conceived and born after the death of one or
both of the persons from whose sperm or ova they were created (defined
under the measure as the child's "genetic parent"). So long as the
requirements set forth in this measure are met, such children are
distributees of their genetic parents and are included in dispositions
to the children of the genetic parents made in instruments created by
any person. The measure also makes changes in various provisions of
the EPTL necessary to give effect to the rights of such children
without creating undue complications in existing law.

Advances in medical technology make it possible for a child to be
conceived after the death of one or both of the child's genetic
parents (often referred to as posthumously-conceived children). The
status of such children for purposes of inheritance and class gifts in
wills and trusts is not clear under existing law. With one exception,
all of the reported cases in the United States dealing with the
inheritance or succession rights of such children have involved the
question whether or not the children are the heirs of the parent who
died before their conception. If the children can be heirs of their
predeceased parents under state law, they are eligible for Social
Security survivor benefits based on the earnings record of their
deceased genetic parent. (Astrue v. Capato,__U.S.__, 132 S.Ct. 2021,
182 L.Ed.2d 88 (2012)). There is no New York caselaw dealing with the
question whether posthumously-conceived children are distributees of
their deceased genetic parent, but because EPTL 4-1.1(c) states:
"{d}istributees of the decedent, conceived before his or her death but
born alive thereafter, take as if they were born in his or her
lifetime," it is highly unlikely that a New York court could find such
children to be distributees of their deceased genetic parents, and the
children would not eligible for Social Security survivor benefits.

The only reported case in the United States dealing with the rights of
posthumously conceived children under a will or trust is a New York
case, Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct.
New York Co. 2007), where the Surrogate held that two children born to
the widow of a son of the creator of the trusts and conceived from the
son's stored sperm after the son's death were indeed their father's
children and therefore his father's issue, making them beneficiaries
of the trusts that were the subject of this construction proceeding.
At the end of her opinion, Surrogate Roth wrote: "There is a need for
comprehensive legislation to resolve the issues raised by advances in
biotechnology." (Id. at 204, 841 N.Y.S.2d at 212). This measure
answers that call and deals in a comprehensive way with the property


rights of posthumously-conceived children by adding to the EPTL a new
section 4-1.3 and amending existing section 11-1.5.

1. Statutory requirements for the posthumously conceived child to be a
child of the genetic parent

The measure contains four requirements that must be met if what it
calls a genetic child is to be child of the "genetic parent" for
purposes of inheritance and gifts in wills and trusts. Proposed EPTL
4-1.3 (b) (1) would require a writing (requirements for which are set
out in paragraph (c)) in which the person storing sperm or ova, the
"genetic parent," expressly consents to the use of that sperm or ova,
the "genetic material," for posthumous reproduction and authorizes.a
person to make decisions about the use of that genetic material after
the death of the genetic parent. Proposed EPTL 4-1.3(b)(2) would
require the person authorized in the writing to give notice within
seven months of the genetic parent's death to the personal
representative of the genetic parent's estate of the existence of the
stored genetic material. If no personal representative has received
letters within four months of the genetic parent's death, the notice
must be given to a distributee of the genetic parent within seven
months of the genetic parent's death. In addition, under proposed EPTL
4-1.3(b)(3) the authorized person must record the writing in the
office of the Surrogate granting letters on the genetic parent's
estate or, if letters have not issued the writing must be recorded in
the office of the Surrogate having jurisdiction to do so (the language
in proposed EPTL 4-1.3(b)(3) is modeled on EPTL 13-2.3, requiring the
recording of a power of attorney related to a decedent's estate).
Finally, proposed EPTL 4-1.3(b)(4) requires that the genetic child be
in utero within twenty-four months or born within thirty-three months
of the genetic parent's death.

2. Result of fulfilling the requirements

A. With respect to the estate of and instruments created by the
genetic parent.

As noted above, EPTL 4-1.1(c) requires that a distributee of a
decedent be conceived during the decedent's lifetime. In addition,
EPTL 2-1.3(a)(2) provides that, unless the creator of an instrument
"expresses a contrary intention," a disposition to children or to any
class that is defined by parent-child relationships (such as issue,
descendants, heirs and terms "of like import"), whether that
relationship involves the creator or another, includes children
"conceived before but born alive after such disposition becomes
effective."

If the four requirements of proposed EPTL 4-1.3(b) are satisfied, the
same provision states that the genetic child is a child of the genetic
parent, a distributee of the genetic parent and is included in any
disposition to a class in an instrument created by the genetic parent
notwithstanding EPTL 4-1.1(c) and 2-1.3(a)(2). Because the genetic
child can be a distributee of the genetic parent, he or she will be
entitled to Social Security survivor benefits based on the genetic
parent's earning record. The child also will be included in any gift
in an instrument created by the genetic parent to the genetic parent's


children, issue, descendants, or other classes described by similar
terms.

The provision of EPTL 5-3.2(b) limiting the meaning of "after-born
child" to a child born during the testator's lifetime or in gestation
at the testator's death is unchanged by proposed EPTL 4-1.3. If the
genetic parent's will makes a disposition to the genetic parent's
children or issue, the genetic child is included in the disposition
but, if the will makes no such disposition, the genetic child is not
entitled to the benefits of EPTL 5-3.2 and administration of the
genetic parent's testate estate will not be delayed waiting for the
possible birth of a genetic child. In every reported case involving
genetic children, the children have been born to the widow of the
genetic parent. In such cases, if the genetic parent died testate, it
is highly likely that the primary if not sole beneficiary of the will
is the surviving spouse who also will be the other parent of the
genetic child and it is not necessary to protect the child by
guaranteeing the child an intestate portion of the genetic parent's
probate estate.

B. With respect to the estates of and instruments created by persons
other than the genetic parent:

i. In intestacy.

Proposed ETPL 4-1.3(b) provides that, if the requirements of the
paragraph are met, the genetic child is a child of the genetic parent.
This provision means that the genetic child will inherit through the
genetic parent so long as the genetic child is conceived during the
lifetime of the intestate decedent, is born alive and survives 120
hours (EPTL 2-1.6).

ii. In instruments.

Proposed EPTL 4-1.3(f) parallels EPTL 2-1.3(c), which deals with
rights of nonmarital children under the instruments of persons other
than the parents of the children. It provides that if the genetic
child is entitled to inherit from the genetic parent under proposed
EPTL 4-1.3, the genetic child is a child of the genetic parent for
purposes of gifts in instruments to children, issue, descendants and
similar classes in instruments, whether of the creator or of other
persons. Because this is a new provision, it is applicable only to
wills of persons dying on or after September 1, 2013 and to lifetime
instruments executed before that date but which on that date can be
revoked or amended by the creator and to all lifetime instruments
executed on or after that date.

C. Examples

The following examples illustrate the workings of proposed EPTL
4-1.3(b) and (f). They all start with the paradigmatic situation -
husband deposits sperm for use by wife should he not survive a life
threatening illness or, where he survives treatment, should he
thereupon become totally infertile. All the examples assume that the
requirements of proposed EPTL 4-1.3(b) have been fulfilled, wife gives
birth to a child conceived with husband's sperm within the required
time period, and that child is therefore the child of husband.


Example 1: Husband dies intestate. Child is a distributee of husband
who is the child's father because proposed EPTL 4-1.3(b) overrides
EPTL 4-1.1(c).

Example 2: Husband dies testate. The will is duly admitted to probate
and makes a disposition to "my issue" or "my children." Child is a
beneficiary of the disposition because proposed EPTL 4-1.3(b) also
overrides EPTL 2-1.3(a)(2).

Example 3: Shortly after husband's death, husband's mother (mother)
dies intestate survived by her spouse and issue. Child is a
distributee of husband's mother only if child is living at mother's
death (or is en ventre sa mere and is then born alive and survives for
120 hours) because under EPTL 4-1.1(c) all of mother's distributees
must at least be conceived before her death.

Example 4: Shortly after husband's death, mother dies testate and her
will, duly admitted to probate, includes a general disposition of
$10,000 "to each of my grandchildren living at my death." Child
participates in the gift only if child is living at mother's death (or
is en ventre sa mere and is then born alive and survives for 120
hours).

Example 5: At mother's death, the testamentary QTIP trust created by
husband's father (father) terminates and the trust terms direct the
trustee to distribute the trust property to father's "issue, then
living, free of trust." Child is a remainder beneficiary of the trust
only if child is living at mother's death (or is en ventre sa mere and
is then born alive and survives for 120 hours) because under EPTL
2-1.3 a member of the class of "issue" must be alive when the
disposition becomes effective or at least have been conceived before
and born alive after the disposition becomes effective.

Example 6: Husband is the creator a revocable trust which on his death
divides into two trusts: Trust 1, to pay income to wife for life and,
at her death, to terminate with the trust property to be distributed
free of trust to husband's issue by representation; and Trust 2, to
pay income to husband's issue until the youngest is 30 years of age at
which time the trust terminates and the trust property is to be
distributed to husband's issue by representation. Child is a
contingent remainder beneficiary of Trust 1, and a present beneficiary
and contingent remainder beneficiary of Trust 2. Child is a child of
husband under proposed EPTL 4-1.3(b), which overrides the provisions
of EPTL 2-1.3(a)(2) which would otherwise prevent child from being a
beneficiary because child was conceived after the dispositions became
effective at husband's death and thus would not be a child of husband
under that provision.

Example 7: In any of the above examples, if the genetic child had been
in utero or born outside of the time limit in proposed EPTL 4-1.3, the
genetic child would not be a distributee of the genetic parent nor
would he or she be included in any of the classes involved in the
examples, even if conceived or born before the class closed.{1}

3. The required writing


Proposed EPTL 4-1.3(c) sets forth the requirements for the writing
specified in proposed 4-1.3(b)(1). The writing must be signed by the
genetic parent in the presence of two witnesses at least eighteen
years of age, neither of whom is a person authorized to make decisions
about the use of the genetic parent's genetic material. The instrument
must be signed and witnessed not more than seven years before the
genetic parent's death. The instrument can be revoked only by a
written instrument signed by the genetic parent and executed in the
same manner as the instrument it revokes. It may not be altered or
revoked by the will of the genetic parent. It may authorize an
alternate to make decisions if the first person designated dies before
the genetic parent or is unable to exercise the authority granted
under the instrument.

Proposed EPTL 4-1.3(c)(5) sets forth a model instrument.

4. Other provisions

Proposed EPTL 4-1.3(d) revokes the authority given under the written
instrument to the genetic parent's spouse should the marriage end in
divorce, annulment, or a judgment or order of legal separation is
entered against the spouse. (This is the same standard applicable to
revocation of dispositions to and beneficiary designations of an
ex-spouse under EPTL 5-1.4(f)(2).)

In order to prevent undue difficulties in opening administration of
the genetic parent's estate, proposed EPTL 4-1.3(e) modifies SCPA 1003
and 1403 by requiring that process shall not issue to a genetic child
unless the child is in being at the time process issues. In other
words, the possibility of the existence of a genetic child of a
decedent will not delay the issuing of letters to the decedent's
personal representative.

Proposed EPTL 4-1.3(g) provides that a genetic child entitled to
inherit from a genetic parent under proposed EPTL 4-1.3(b) is included
in the terms "issue," "surviving issue" and "issue surviving" as used
in EPTL 3-3.3, the anti-lapse statute. A genetic child would therefore
take a share of a lapsed gift on the same basis as the birth, adopted,
or nonmarital issue of the person to whom a testamentary disposition
is made but who dies before the testator and to which EPTL 3-3.3
applies.

Proposed EPTL 4-1.3(h) removes the possibility of the birth of a
genetic child from determinations of validity of a disposition under
the rule against perpetuities (EPTL 9-1.1). The exclusion of genetic
children from such determinations mirrors the exclusion of the
possibility of adoption in EPTL 9-1.3(e)(3).

Genetic material cannot be the subject of a disposition in any
instrument. In Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673
N.Y.S.2d 350 (1998), a unanimous Court of Appeals held that the
disposition of pre-embryos created by a husband and wife on the
couple's divorce was governed by the contracts between the fertility
clinic and the couple. The court put great weight on the freely made
choices of the parties and clearly did not equate the pre-embryos with
"property" subject to disposition on divorce. In the case of preserved
genetic material, proposed EPTL 4-1.3 provides a comprehensive scheme


under which the depositor of the material can express his or her
desires with regard to the use of such material for posthumous
reproduction. In light of Kass, it is reasonable that proposed EPTL
4-1.3 and the agreement freely made between the depositor and the
depository govern the use of the genetic material, to the exclusion of
other agreements including the depositor's will.

Because distribution of the genetic parent's estate may be delayed by
the possibility of the birth of a genetic child, this measure amends
EPTL 11-1.5 to deal with that possibility. Paragraph (a) states that
the personal representative need not pay a testamentary disposition or
distributive share before completion of the publication of notice to
creditors or if no notice is published, before the expiration of seven
months from the time of letters were granted. The measure amends the
statute to add to these two events the birth of a genetic child of the
decedent who is entitled to inherit under proposed EPTL 4-1.3, so long
as notice of the availability of the decedent's genetic material has
been given under the statute. Paragraph (b) is amended to allow the
personal representative to require a bond whenever the will directs a
disposition to be paid before the birth of a child entitled to inherit
under proposed EPTL 4-1.3 and paragraph (c) is amended to allow the
personal representative to refuse a demand to pay before the birth of
a child entitled to inherit under proposed EPTL 4-1.3. Finally,
paragraph (d) directs that interest be paid at the statutory 6% rate
commencing at the later of the expiration of seven months from the
grant of letters or the birth of a child entitled to inherit under
proposed EPTL 4-1.3. Because the rule of paragraph (a), which as
amended allows the personal representative to delay distribution until
the birth of the posthumously conceived child of the decedent is
subject to "court decree or order," the rule can be modified by the
court under appropriate circumstances.

This measure would have no fiscal impact on State or local government.
It would take effect immediately and apply to the estates of decedents
dying on or after that date, provided, however, that the provisions of
paragraph (f) of proposed EPTL 4-1.3, as added by section 1 of this
act, would apply to the wills of persons dying on or after September
1, 2013, to lifetime instruments theretofore executed which on said
date are subject to the grantor's power to revoke or amend, and to all
lifetime instruments executed on or after such date.

Legislative History: None. New proposal.

{1} Under proposed ETPL 4-1.3, neither of the posthumously conceived
children whose status as beneficiaries of trusts created by their
genetic father's father was confirmed in Matter of Martin B, 17
Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct. New York Co. 2007) would be
children of their genetic father or issue of his father because they
were conceived and born well outside of the applicable time limits.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  4779

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 23, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed to the Committee on Judiciary

AN  ACT  to  amend  the  estates,  powers and trusts law, in relation to
  rights of a child conceived after the death of  a  genetic  parent  of
  such child

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The estates, powers and trusts law is amended by  adding  a
new section 4-1.3 to read as follows:
S 4-1.3 INHERITANCE  BY  CHILDREN CONCEIVED AFTER THE DEATH OF A GENETIC
          PARENT
  (A) WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT  OR  SUBJECT  MATTER
MANIFESTLY REQUIRES A DIFFERENT INTERPRETATION:
  (1)  "GENETIC  PARENT"  SHALL MEAN A MAN WHO PROVIDES SPERM OR A WOMAN
WHO PROVIDES OVA USED TO CONCEIVE A CHILD AFTER THE DEATH OF THE MAN  OR
WOMAN.
  (2)  "GENETIC  MATERIAL" SHALL MEAN SPERM OR OVA PROVIDED BY A GENETIC
PARENT.
  (3) "GENETIC CHILD" SHALL MEAN A CHILD OF THE SPERM OR OVA PROVIDED BY
A GENETIC PARENT, BUT ONLY IF AND WHEN SUCH CHILD IS BORN.
  (B) FOR PURPOSES OF THIS ARTICLE, A GENETIC CHILD IS THE CHILD OF  HIS
OR  HER  GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING PARAGRAPH (C) OF
SECTION 4-1.1 OF THIS PART, IS A  DISTRIBUTEE  OF  HIS  OR  HER  GENETIC
PARENT OR PARENTS AND, NOTWITHSTANDING SUBPARAGRAPH (2) OF PARAGRAPH (A)
OF  SECTION  2-1.3  OF  THIS  CHAPTER, IS INCLUDED IN ANY DISPOSITION OF
PROPERTY TO PERSONS DESCRIBED IN  ANY  INSTRUMENT  OF  WHICH  A  GENETIC
PARENT  OF  THE  GENETIC  CHILD  WAS THE CREATOR AS THE ISSUE, CHILDREN,
DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR  BY  ANY
TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10087-01-3

S. 4779                             2

  (1)  THE  GENETIC  PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO
THE PROVISIONS OF THIS SECTION NOT MORE  THAN  SEVEN  YEARS  BEFORE  THE
DEATH OF THE GENETIC PARENT:
  (A)  EXPRESSLY  CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO
POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND
  (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC
PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT;
  (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN
NOTICE, BY CERTIFIED MAIL, RETURN  RECEIPT  REQUESTED,  OR  BY  PERSONAL
DELIVERY,  THAT  THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR
THE PURPOSE OF CONCEIVING A GENETIC CHILD OF  THE  GENETIC  PARENT,  AND
SUCH WRITTEN NOTICE WAS GIVEN;
  (A)  WITHIN  SEVEN  MONTHS  FROM  THE  DATE OF THE ISSUANCE OF LETTERS
TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE  GENETIC  PARENT,
AS  THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR,
IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE  DEATH  OF  THE
GENETIC PARENT, AND
  (B)  WITHIN  SEVEN  MONTHS  OF  THE  DEATH  OF THE GENETIC PARENT TO A
DISTRIBUTEE OF THE GENETIC PARENT;
  (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL RECORDED THE
WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH  IN
THE  OFFICE  OF  THE  SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S
ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE  OF  THE
SURROGATE HAVING JURISDICTION TO GRANT THEM; AND
  (4)  THE  GENETIC  CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS
AFTER THE GENETIC PARENT'S DEATH OR  BORN  NO  LATER  THAN  THIRTY-THREE
MONTHS AFTER THE GENETIC PARENT'S DEATH.
  (C)  THE  WRITTEN  INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA-
GRAPH (B) OF THIS SECTION:
  (1) MUST BE SIGNED BY THE  GENETIC  PARENT  IN  THE  PRESENCE  OF  TWO
WITNESSES  WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH-
TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED  UNDER  THE
INSTRUMENT  TO  MAKE  DECISIONS  ABOUT  THE  USE OF THE GENETIC PARENT'S
GENETIC MATERIAL;
  (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE  GENETIC
PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES;
  (3)  MAY  NOT  BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE
GENETIC PARENT;
  (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF  THE
GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES
BEFORE  THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT-
ED; AND
  (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED  AND
DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED:

I, _____________________________________________________________________,
                         (YOUR NAME AND ADDRESS)
CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET-
IC  MATERIAL")  TO  CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH,
AND I AUTHORIZE

_________________________________________________________________________
                      (NAME AND ADDRESS OF PERSON)

S. 4779                             3

TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO  CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
IN  THE  EVENT  THAT  THE  PERSON  AUTHORIZED ABOVE DIES BEFORE ME OR IS
UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE

_________________________________________________________________________
                      (NAME AND ADDRESS OF PERSON)
TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO  CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
I  UNDERSTAND  THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION IN A
WRITTEN DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO  ALSO
SIGN  THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN EFFECT
FOR SEVEN YEARS FROM THIS DAY AND THAT I CANNOT REVOKE  OR  MODIFY  THIS
CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL.

SIGNED THIS       DAY OF         ,

_____________________________________________
(YOUR SIGNATURE)
STATEMENT OF WITNESSES:
I  DECLARE  THAT THE PERSON WHO SIGNED THIS DOCUMENT IS PERSONALLY KNOWN
TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM
DURESS. HE OR SHE SIGNED THIS DOCUMENT IN MY  PRESENCE.  I  AM  NOT  THE
PERSON  AUTHORIZED  IN  THIS  DOCUMENT TO CONTROL THE USE OF THE GENETIC
MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
WITNESS:
ADDRESS:
DATE:
WITNESS:
ADDRESS:
DATE:
  (D) ANY AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED  BY  THIS
SECTION  TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE TIME
OF EXECUTION OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL  DECREE  OR
JUDGMENT  OF  DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT OR ORDER
DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE
SPOUSE OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE,  RECOGNIZED
AS  VALID  UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR JUDGMENT OF
SEPARATION, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE,  WHICH  WAS
RENDERED AGAINST THE SPOUSE.
  (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF
A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR
HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS
IN BEING AT THE TIME PROCESS ISSUES.
  (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO
ANY  DISPOSITION  OF  PROPERTY  IN  ANY  INSTRUMENT OF WHICH THE GENETIC
PARENT OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION  2-1.3
OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET-
IC  PARENT  UNDER  THIS  SECTION  IS  A  CHILD OF THE GENETIC PARENT FOR
PURPOSES OF A DISPOSITION  OF  PROPERTY  TO  PERSONS  DESCRIBED  IN  ANY
INSTRUMENT  AS  THE  ISSUE,  CHILDREN, DESCENDANTS, HEIRS, HEIRS AT LAW,
NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR
OR OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS  DYING
ON  OR AFTER SEPTEMBER FIRST, TWO THOUSAND THIRTEEN, TO LIFETIME INSTRU-
MENTS THERETOFORE EXECUTED  WHICH  ON  SAID  DATE  ARE  SUBJECT  TO  THE

S. 4779                             4

GRANTOR'S  POWER  TO  REVOKE  OR  AMEND, AND TO ALL LIFETIME INSTRUMENTS
EXECUTED ON OR AFTER SUCH DATE.
  (G)  FOR  PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE",
"SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR
SHE IS ENTITLED TO INHERIT FROM HIS OR HER  GENETIC  PARENT  UNDER  THIS
SECTION.
  (H)  WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE-
TUITIES DEPENDS ON THE ABILITY OF A PERSON  TO  HAVE  A  CHILD  AT  SOME
FUTURE  TIME,  THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD
SHALL BE DISREGARDED. THIS PROVISION SHALL NOT  APPLY  FOR  ANY  PURPOSE
OTHER  THAN  THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE
RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY  OF
A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI-
TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY
THE  APPLICATION  OF  THIS  PROVISION SHALL NOT BE AFFECTED BY THE LATER
BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION.
  (I) THE USE OF A GENETIC  MATERIAL  AFTER  THE  DEATH  OF  THE  PERSON
PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS
SECTION  AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH
PERSON AND THE FACILITY PROVIDING STORAGE OF THE  GENETIC  MATERIAL  AND
MAY  NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE
PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON.
  S 2. Paragraphs (a), (b),  (c)  and  (d)  of  section  11-1.5  of  the
estates,  powers  and  trusts  law,  paragraph (a) and subparagraph 1 of
paragraph (b) as amended, and such section as renumbered by chapter  686
of  the laws of 1967, and paragraph (d) as amended by chapter 634 of the
laws of 1985, are amended to read as follows:
  (a) Subject to his OR HER duty to  retain  sufficient  assets  to  pay
administration  and  reasonable  funeral expenses, debts of the decedent
and all taxes for which the estate is liable, a personal  representative
may, but, except as directed by will or court decree or order, shall not
be  required  to, pay any testamentary disposition or distributive share
before the completion of the publication of notice to creditors  or,  if
no  such notice is published, before the expiration of seven months from
the time letters testamentary or of administration are granted,  OR,  IF
NOTICE  OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN
GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC  CHILD  WHO  IS
ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3.
  (b)  Whenever  a disposition is directed by will to be paid in advance
of such publication of notice or the  expiration  of  such  seven  month
period  OR  THE  BIRTH  OF  A GENETIC CHILD ENTITLED TO INHERIT FROM THE
DECEDENT UNDER SECTION 4-1.3, the personal representative may require  a
bond, conditioned as follows:
  (1) That if debts of the decedent appear, and the assets of the estate
are  insufficient  to pay them or to pay other testamentary dispositions
entitled, under SECTION 13-1.3, to payment equally with or prior to that
of the disposition paid in advance,  the  beneficiary  to  whom  advance
payment  was  made  will  refund it, or the value thereof, together with
interest thereon and any costs incurred by reason of  such  payment,  or
such  ratable  portion  thereof, as is necessary to pay such debts or to
satisfy the rights, if any, of other beneficiaries under the will.
  (2) That if the will, under which the disposition was paid, is  denied
probate, on appeal or otherwise, such beneficiary will refund the entire
advance  payment,  together  with  interest  and  costs  as described in
subparagraph (1), to the personal representative entitled thereto.

S. 4779                             5

  (c) If, after the publication of notice to creditors or the expiration
of seven months from the time letters are granted  OR  THE  BIRTH  OF  A
GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3,
as  the  case may be, the personal representative refuses upon demand to
pay a disposition or distributive share, the person entitled thereto may
maintain  an  appropriate  action  or  proceeding against such represen-
tative. But, for the purpose of  computing  the  time  limited  for  its
commencement,  the  cause  of  action does not accrue until the personal
representative's account is judicially settled.
  (d) In any action or proceeding to compel payment of a disposition  or
distributive  share, the interest thereon, if any, shall, in the case of
a disposition, be at the rate fixed in the will or, if none is so fixed,
in any case at the rate of six percent per annum  commencing  THE  LATER
OF,  seven months from the time letters, including preliminary or tempo-
rary letters, are granted OR THE BIRTH OF A GENETIC CHILD OF  THE  DECE-
DENT ENTITLED TO INHERIT UNDER SECTION 4-1.3.
  S 3. This act shall take effect immediately and shall apply to estates
of  decedents  dying  on or after such date; provided, however, that the
provisions of paragraph (f) of section 4-1.3 of the estates, powers  and
trusts  law,  as  added  by  section one of this act, shall apply to the
wills of persons dying on  or  after  September  1,  2013,  to  lifetime
instruments  theretofore  executed which on said date are subject to the
grantor's power to revoke or amend,  and  to  all  lifetime  instruments
executed on or after such date.

S4779A - Bill Details

See Assembly Version of this Bill:
A7461
Law Section:
Estates, Powers and Trusts Law
Laws Affected:
Add §4-1.3, amd §11-1.5, EPT L

S4779A - Bill Texts

view summary

Relates to inheritance by children conceived after the death of a genetic parent.

view sponsor memo
BILL NUMBER:S4779A REVISED MEMO 01/27/2014

TITLE OF BILL: An act to amend the estates, powers and trusts law, in
relation to rights of a child conceived after the death of a genetic
parent of such child

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Surro-
gate's Court Advisory Committee.

This measure would amend the Estates, Powers and Trusts Law ("EPTL") to
provide rules governing the status, for purposes of inheritance and
participation in certain dispositions in instruments including wills and
trusts, of children conceived and born after the death of one or both of
the persons from whose sperm or ova they were created (defined under the
measure as the child's "genetic parent"). So long as the requirements
set forth in this measure are met, such children are distributees of
their genetic parents and are included in dispositions to the children
of the genetic parents made in instruments created by any person. The
measure also makes changes in various provisions of the EPTL necessary
to give effect to the rights of such children without creating undue
complications in existing law.

Advances in medical technology make it possible for a child to be
conceived after the death of one or both of the child's genetic parents
(often referred to as posthumously-conceived children). The status of
such children for purposes of inheritance and class gifts in wills and
trusts is not clear under existing law. With one exception, all of the
reported cases in the United States dealing with the inheritance or
succession rights of such children have involved the question whether or
not the children are the heirs of the parent who died before their
conception. If the children can be heirs of their predeceased parents
under state law, they are eligible for Social Security survivor benefits
based on the earnings record of their deceased genetic parent. (Astrue
v. Capato, U.S. , 132 S.Ct. 2021. 182 L.Ed.2d 88 (2012)). There is no
New York caselaw dealing with the question whether posthumously-con-
ceived children are distributees of their deceased genetic parent, but
because EPTL 4-1.1(c) states: "(d)istributees of the decedent, conceived
before his or her death but born alive thereafter, take as if they were
born in his or her lifetime," it is highly unlikely that a New York
court could find such children to be distributees of their deceased
genetic parents, and the children would not eligible for Social Security
survivor benefits.

The only reported case in the United States dealing with the rights of
posthumously conceived children under a will or trust is a New York
case, Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct.
New York Co. 2007), where the Surrogate held that two children born to
the widow of a son of the creator of the trusts and conceived from the
son's stored sperm after the son's death were indeed their father's
children and therefore his father's issue, making them beneficiaries of
the trusts that were the subject of this construction proceeding. At the

end of her opinion, Surrogate Roth wrote: "There is a need for compre-
hensive legislation to resolve the issues raised by advances in biotech-
nology." (Id. at 204, 841 N.Y.S.2d at 212). This measure answers that
call and deals in a comprehensive way with the property rights of
posthumously-conceived children by adding to the EPTL a new section
4-1.3 and amending existing section 11-1.5.

1. Statutory requirements for the posthumously conceived child to be a
child of the genetic parent.

The measure contains four requirements that must be met if what it calls
a genetic child is to be child of the "genetic parent" for purposes of
inheritance and gifts in wills and trusts. Proposed EPTL 4-1.3 (b)(1)
would require a writing (requirements for which are set out in paragraph
(c)) in which the person storing sperm or ova, the "genetic parent,"
expressly consents to the use of that sperm or ova, the "genetic materi-
al," for posthumous reproduction and authorizes a person to make deci-
sions about the use of that genetic material after the death of the
genetic parent. Proposed EPTL 4-1.3(b)(2) would require the person
authorized in the writing to give notice within seven months of the
genetic parent's death to the personal representative of the genetic
parent's estate of the existence of the stored genetic material. If no
personal representative has received letters within four months of the
genetic parent's death, the notice must be given to a distributee of the
genetic parent within seven months of the genetic parent's death. In
addition, under proposed EPTL 4-1.3(b)(3) the authorized person must
record the writing in the office of the Surrogate granting letters on
the genetic parent's estate or, if letters have not issued, the writing
must be recorded in the office of the Surrogate having jurisdiction to
do so (the language in proposed EPTL 4-1.3(b)(3) is modeled on EPTL
13-2.3, requiring the recording of a power of attorney related to a
decedent's estate). Finally, proposed EPTL 4-1.3(b)(4) requires that the
genetic child be in utero within twenty-four months or born within thir-
ty-three months of the genetic parent's death.

2. Result of fulfilling the requirements

A. With respect to the estate of and instruments created by the genetic
parent.

As noted above, EPTL 4-1.1(c) requires that a distributee of a decedent
be conceived during the decedent's lifetime. In addition, EPTL
2-1.3(a)(2) provides that, unless the creator of an instrument
"expresses a contrary intention," a disposition to children or to any
class that is defined by parent-child relationships (such as issue,
descendants, heirs and terms "of like import"), whether that relation-
ship involves the creator or another, includes children "conceived
before but born alive after such disposition becomes effective."

If the four requirements of proposed EPTL 4-1.3 (b) are satisfied, the
same provision states that the genetic child is a child of the genetic
parent, a distributee of the genetic parent and is included in any

disposition to a class in an instrument created by the genetic parent
notwithstanding EPTL 4-1.1(c) and 2-1.3(a)(2). Because the genetic child
can be a distributee of the genetic parent, he or she will be entitled
to Social Security survivor benefits based on the genetic parent's earn-
ing record. The child also will be included in any gift in an instrument
created by the genetic parent to the genetic parent's children, issue,
descendants, or other classes described by similar terms.

The provision of EPTL 5-3.2(b) limiting the meaning of "after-born
child" to a child born during the testator's lifetime or in gestation at
the testator's death is unchanged by proposed EPTL 4-1.3. If the genetic
parent's will makes a disposition to the genetic parent's children or
issue, the genetic child is included in the disposition but, if the will
makes no such disposition, the genetic child is not entitled to the
benefits of EPTL 5-3.2 and administration of the genetic parent's
testate estate will not be delayed waiting for the possible birth of a
genetic child. In every reported case involving genetic children, the
children have been born to the widow of the genetic parent. In such
cases, if the genetic parent died testate, it is highly likely that the
primary if not sole beneficiary of the will is the surviving spouse who
also will be the other parent of the genetic child and it is not neces-
sary to protect the child by guaranteeing the child an intestate portion
of the genetic parent's probate estate.

B. With respect to the estates of and instruments created by persons
other than the genetic parent:

i. In intestacy.

Proposed ETPL 4-1.3(b) provides that, if the requirements of the para-
graph are met, the genetic child is a child of the genetic parent. This
provision means that the genetic child will inherit through the genetic
parent so long as the genetic child is conceived during the lifetime of
the intestate decedent, is born alive and survives 120 hours (EPTL
2-1.6).

ii. In instruments.

Proposed EPTL 4-1.3(f) parallels EPTL 2-1.3(c), which deals with rights
of nonmarital children under the instruments of persons other than the
parents of the children. It provides that if the genetic child is enti-
tled to inherit from the genetic parent under proposed EPTL 4-1.3, the
genetic child is a child of the genetic parent for purposes of gifts in
instruments to children, issue, descendants and similar classes in
instruments, whether of the creator or of other persons. Because this is
a new provision, it is applicable only to wills of persons dying on or
after September 1, 2013 and to lifetime instruments executed before that
date but which on that date can be revoked or amended by the creator and
to all lifetime instruments executed on or after that date.

C. Examples

The following examples illustrate the workings of proposed EPTL 4-1.3(b)
and (f). They all start with the paradigmatic situation - husband depos-
its sperm for use by wife should he not survive a life threatening
illness or, where he survives treatment, should he thereupon become
totally infertile. All the examples assume that the requirements of
proposed EPTL 4-1.3(b) have been fulfilled, wife gives birth to a child
conceived with husband's sperm within the required time period, and that
child is therefore the child of husband.

Example 1: Husband dies intestate. Child is a distributee of husband who
is the child's father because proposed EPTL 4-1.3(b) overrides EPTL
4-1.1(c).

Example 2: Husband dies testate. The will is duly admitted to probate
and makes a disposition to "my issue" or "my children." Child is a bene-
ficiary of the disposition because proposed EPTL 4-1.3(b) also overrides
EPTL 2-1.3(a)(2).

Example 3: Shortly after husband's death, husband's mother (mother) dies
intestate survived by her spouse and issue. Child is a distributee of
husband's mother only if child is living at mother's death (or is en
ventre sa mere and is then born alive and survives for 120 hours)
because under EPTL 4-1.1(c) all of mother's distributees must at least
be conceived before her death.

Example 4: Shortly after husband's death, mother dies testate and her
will, duly admitted to probate, includes a general disposition of
$10,000 "to each of my grandchildren living at my death." Child partic-
ipates in the gift only if child is living at mother's death

(or is en ventre sa mere and is then born alive and survives for 120
hours).

Example 5: At mother's death, the testamentary QTIP trust created by
husband's father (father) terminates and the trust terms direct the
trustee to distribute the trust property to father's "issue, then
living, free of trust." Child is a remainder beneficiary of the trust
only if child is living at mother's death (or is en ventre sa mere and
is then born alive and survives for 120 hours) because under EPTL 2-1.3
a member of the class of "issue" must be alive when the disposition
becomes effective or at least have been conceived before and born alive
after the disposition becomes effective.

Example 6: Husband is the creator a revocable trust which on his death
divides into two trusts: Trust 1, to pay income to wife for life and, at
her death, to terminate with the trust property to be distributed free
of trust to husband's issue by representation; and Trust 2, to pay
income to husband's issue until the youngest is 30 years of age at which
time the trust terminates and the trust property is to be distributed to
husband's issue by representation. Child is a contingent remainder bene-
ficiary of Trust 1, and a present beneficiary and contingent remainder
beneficiary of Trust 2. Child is a child of husband under proposed EPTL

4-1.3(b), which overrides the provisions of EPTL 2-1.3(a)(2) which would
otherwise prevent child from being a beneficiary because child was
conceived after the dispositions became effective at husband's death and
thus would not be a child of husband under that provision.

Example 7: In any of the above examples, if the genetic child had been
in utero or born outside of the time limit in proposed EPTL 4-1.3, the
genetic child would not be a distributee of the genetic parent nor would
he or she be included in any of the classes involved in the examples,
even if conceived or born before the class closed.*

3. The required writing

Proposed EPTL 4-1.3(c) sets forth the requirements for the writing spec-
ified in proposed 4-1.3(b)(1). The writing must be signed by the genetic
parent in the presence of two witnesses at least eighteen years of age,
neither of whom is a person authorized to make decisions about the use
of the genetic parent's genetic material. The instrument must be signed
and witnessed not more than seven years before the genetic parent's
death. The instrument can be revoked only by a written instrument signed
by the genetic parent and executed in the same manner as the instrument
it revokes. It may not be altered or revoked by the will of the genetic
parent. It may authorize an alternate to make decisions if the first
person designated dies before the genetic parent or is unable to exer-
cise the authority granted under the instrument.

Proposed EPTL 4-1.3(c)(5) sets forth a model instrument.

*Under proposed ETPL 4-1.3, neither of the posthumously conceived chil-
dren whose status as beneficiaries of trusts created by their genetic
father's father was confirmed in Matter of Martin B, 17 Misc.3d 198, 841
N.Y.S.,2d 207 (Sur. Ct. New York Co. 2007) would be children of their
genetic father or issue of his father because they were conceived and
born well outside of the applicable time limits.

4. Other provisions

Proposed EPTL 4-1.3(d) revokes the authority given under the written
instrument to the genetic parent's spouse should the marriage end in
divorce, annulment, or a judgment or order of legal separation is
entered against the spouse. (This is the same standard applicable to
revocation of dispositions to and beneficiary designations of an
ex-spouse under EPTL 5-1.4(f)(2).)

In order to prevent undue difficulties in opening administration of the
genetic parent's estate, proposed EPTL 4-1.3(e) modifies SCPA 1003 and
1403 by requiring that process shall not issue to a genetic child unless
the child is in being at the time process issues. In other words, the
possibility of the existence of a genetic child of a decedent will not
delay the issuing of letters to the decedent's personal representative.

Proposed EPTL 4-1.3(g) provides that a genetic child entitled to inherit
from a genetic parent under proposed EPTL 4-1.3(b) is included in the
terms "issue," "surviving issue" and "issue surviving" as used in EPTL
3-3.3, the anti-lapse statute. A genetic child would therefore take a
share of a lapsed gift on the same basis as the birth, adopted, or
nonmarital issue of the person to whom a testamentary disposition is
made but who dies before the testator and to which EPTL 3-3.3 applies.

Proposed EPTL 4-1.3(h) removes the possibility of the birth of a genetic
child from determinations of validity of a disposition under the rule
against perpetuities (EPTL 9-1.1). The exclusion of genetic children
from such determinations mirrors the exclusion of the possibility of
adoption in EPTL 9-1.3(e)(3).

Genetic material cannot be the subject of a disposition in any instru-
ment. In Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350
(1998), a unanimous Court of Appeals held that the disposition of pre-
embryos created by a husband and wife on the couple's divorce was
governed by the contracts between the fertility clinic and the couple.
The court put great weight on the freely made choices of the parties and
clearly did not equate the pre-embryos with "property" subject to dispo-
sition on divorce. In the case of preserved genetic material, proposed
EPTL 4-1.3 provides a comprehensive scheme under which the depositor of
the material can express his or her desires with regard to the use of
such material for posthumous reproduction. In light of Kass, it is
reasonable that proposed EPTL 4-1.3 and the agreement freely made
between the depositor and the depository govern the use of the genetic
material, to the exclusion of other agreements including the depositor's
will.

Because distribution of the genetic parent's estate may be delayed by
the possibility of the birth of a genetic child, this measure amends
EPTL 11-1.5 to deal with that possibility. Paragraph (a) states that the
personal representative need not pay a testamentary disposition or
distributive share before completion of the publication of notice to
creditors or if no notice is published, before the expiration of seven
months from the time of letters were granted. The measure amends the
statute to add to these two events the birth of a genetic child of the
decedent who is entitled to inherit under proposed EPTL 4-1.3, so long
as notice of the availability of the decedent's genetic material has
been given under the statute. Paragraph (b) is amended to allow the
personal representative to require a bond whenever the will directs a
disposition to be paid before the birth of a child entitled to inherit
under proposed EPTL 4-1.3 and paragraph (c) is amended to allow the
personal representative to refuse a demand to pay before the birth of a
child entitled to inherit under proposed EPTL 4-1.3. Finally, paragraph
(d) directs that interest be paid at the statutory 6% rate commencing at
the later of the expiration of seven months from the grant of letters or
the birth of a child entitled to inherit under proposed EPTL 4-1.3.
Because the rule of paragraph (a), which as amended allows the personal
representative to delay distribution until the birth of the posthumously

conceived child of the decedent is subject to "court decree or order,"
the rule can be modified by the court under appropriate circumstances.

This measure would have no fiscal impact on State or local government.
It would take effect immediately and apply to the estates of decedents
dying on or after that date, provided, however, that the provisions of
paragraph (f) of proposed EPTL 4-1.3, as added by section 1 of this act,
would apply to the wills of persons dying on or after September 1, 2014,
to lifetime instruments theretofore executed which on said date are
subject to the grantor's power to revoke or amend, and to all lifetime
instruments executed on or after such date.

2013 Legislative History:

S. 4779-A (Senator Bonacic) (ref to Judiciary)
A. 7461 (M. of A. Cook, Weinstein) (ord to 3rd Rdg, Cal. 365)

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4779--A

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 23, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee

AN  ACT  to  amend  the  estates,  powers and trusts law, in relation to
  rights of a child conceived after the death of  a  genetic  parent  of
  such child

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The estates, powers and trusts law is amended by  adding  a
new section 4-1.3 to read as follows:
S 4-1.3 INHERITANCE  BY  CHILDREN CONCEIVED AFTER THE DEATH OF A GENETIC
          PARENT
  (A) WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT  OR  SUBJECT  MATTER
MANIFESTLY REQUIRES A DIFFERENT INTERPRETATION:
  (1)  "GENETIC  PARENT"  SHALL MEAN A MAN WHO PROVIDES SPERM OR A WOMAN
WHO PROVIDES OVA USED TO CONCEIVE A CHILD AFTER THE DEATH OF THE MAN  OR
WOMAN.
  (2)  "GENETIC  MATERIAL" SHALL MEAN SPERM OR OVA PROVIDED BY A GENETIC
PARENT.
  (3) "GENETIC CHILD" SHALL MEAN A CHILD OF THE SPERM OR OVA PROVIDED BY
A GENETIC PARENT, BUT ONLY IF AND WHEN SUCH CHILD IS BORN.
  (B) FOR PURPOSES OF THIS ARTICLE, A GENETIC CHILD IS THE CHILD OF  HIS
OR  HER  GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING PARAGRAPH (C) OF
SECTION 4-1.1 OF THIS PART, IS A  DISTRIBUTEE  OF  HIS  OR  HER  GENETIC
PARENT OR PARENTS AND, NOTWITHSTANDING SUBPARAGRAPH (2) OF PARAGRAPH (A)
OF  SECTION  2-1.3  OF  THIS  CHAPTER, IS INCLUDED IN ANY DISPOSITION OF
PROPERTY TO PERSONS DESCRIBED IN  ANY  INSTRUMENT  OF  WHICH  A  GENETIC
PARENT  OF  THE  GENETIC  CHILD  WAS THE CREATOR AS THE ISSUE, CHILDREN,

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10087-03-3

S. 4779--A                          2

DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR  BY  ANY
TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT:
  (1)  THE  GENETIC  PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO
THE PROVISIONS OF THIS SECTION NOT MORE  THAN  SEVEN  YEARS  BEFORE  THE
DEATH OF THE GENETIC PARENT:
  (A)  EXPRESSLY  CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO
POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND
  (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC
PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT;
  (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN
NOTICE, BY CERTIFIED MAIL, RETURN  RECEIPT  REQUESTED,  OR  BY  PERSONAL
DELIVERY,  THAT  THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR
THE PURPOSE OF CONCEIVING A GENETIC CHILD OF  THE  GENETIC  PARENT,  AND
SUCH WRITTEN NOTICE WAS GIVEN;
  (A)  WITHIN  SEVEN  MONTHS  FROM  THE  DATE OF THE ISSUANCE OF LETTERS
TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE  GENETIC  PARENT,
AS  THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR,
IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE  DEATH  OF  THE
GENETIC PARENT, AND
  (B)  WITHIN  SEVEN  MONTHS  OF  THE  DEATH  OF THE GENETIC PARENT TO A
DISTRIBUTEE OF THE GENETIC PARENT;
  (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL RECORDED THE
WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH  IN
THE  OFFICE  OF  THE  SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S
ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE  OF  THE
SURROGATE HAVING JURISDICTION TO GRANT THEM; AND
  (4)  THE  GENETIC  CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS
AFTER THE GENETIC PARENT'S DEATH OR  BORN  NO  LATER  THAN  THIRTY-THREE
MONTHS AFTER THE GENETIC PARENT'S DEATH.
  (C)  THE  WRITTEN  INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA-
GRAPH (B) OF THIS SECTION:
  (1) MUST BE SIGNED BY THE  GENETIC  PARENT  IN  THE  PRESENCE  OF  TWO
WITNESSES  WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH-
TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED  UNDER  THE
INSTRUMENT  TO  MAKE  DECISIONS  ABOUT  THE  USE OF THE GENETIC PARENT'S
GENETIC MATERIAL;
  (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE  GENETIC
PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES;
  (3)  MAY  NOT  BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE
GENETIC PARENT;
  (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF  THE
GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES
BEFORE  THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT-
ED; AND
  (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED  AND
DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED:

I, _____________________________________________________________________,
                         (YOUR NAME AND ADDRESS)
CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET-
IC  MATERIAL")  TO  CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH,
AND I AUTHORIZE

_________________________________________________________________________

S. 4779--A                          3

                      (NAME AND ADDRESS OF PERSON)
TO  DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
IN THE EVENT THAT THE PERSON AUTHORIZED  ABOVE  DIES  BEFORE  ME  OR  IS
UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE

_________________________________________________________________________
                      (NAME AND ADDRESS OF PERSON)
TO  DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
I UNDERSTAND THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION  IN  A
WRITTEN  DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO ALSO
SIGN THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN  EFFECT
FOR  SEVEN  YEARS  FROM THIS DAY AND THAT I CANNOT REVOKE OR MODIFY THIS
CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL.

SIGNED THIS       DAY OF         ,

_____________________________________________
(YOUR SIGNATURE)
STATEMENT OF WITNESSES:
I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT IS  PERSONALLY  KNOWN
TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM
DURESS.  HE  OR  SHE  SIGNED  THIS DOCUMENT IN MY PRESENCE. I AM NOT THE
PERSON AUTHORIZED IN THIS DOCUMENT TO CONTROL THE  USE  OF  THE  GENETIC
MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
WITNESS:
ADDRESS:
DATE:
WITNESS:
ADDRESS:
DATE:
  (D)  ANY  AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED BY THIS
SECTION TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE  TIME
OF  EXECUTION  OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL DECREE OR
JUDGMENT OF DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT  OR  ORDER
DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE
SPOUSE  OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE, RECOGNIZED
AS VALID UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR  JUDGMENT  OF
SEPARATION,  RECOGNIZED  AS VALID UNDER THE LAW OF THIS STATE, WHICH WAS
RENDERED AGAINST THE SPOUSE.
  (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF
A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR
HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS
IN BEING AT THE TIME PROCESS ISSUES.
  (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO
ANY DISPOSITION OF PROPERTY IN  ANY  INSTRUMENT  OF  WHICH  THE  GENETIC
PARENT  OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION 2-1.3
OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET-
IC PARENT UNDER THIS SECTION IS  A  CHILD  OF  THE  GENETIC  PARENT  FOR
PURPOSES  OF  A  DISPOSITION  OF  PROPERTY  TO  PERSONS DESCRIBED IN ANY
INSTRUMENT AS THE ISSUE, CHILDREN, DESCENDANTS,  HEIRS,  HEIRS  AT  LAW,
NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR
OR  OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS DYING
ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND THIRTEEN, TO LIFETIME  INSTRU-
MENTS  THERETOFORE  EXECUTED  WHICH  ON  SAID  DATE  ARE  SUBJECT TO THE

S. 4779--A                          4

GRANTOR'S POWER TO REVOKE OR AMEND,  AND  TO  ALL  LIFETIME  INSTRUMENTS
EXECUTED ON OR AFTER SUCH DATE.
  (G)  FOR  PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE",
"SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR
SHE IS ENTITLED TO INHERIT FROM HIS OR HER  GENETIC  PARENT  UNDER  THIS
SECTION.
  (H)  WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE-
TUITIES DEPENDS ON THE ABILITY OF A PERSON  TO  HAVE  A  CHILD  AT  SOME
FUTURE  TIME,  THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD
SHALL BE DISREGARDED. THIS PROVISION SHALL NOT  APPLY  FOR  ANY  PURPOSE
OTHER  THAN  THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE
RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY  OF
A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI-
TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY
THE  APPLICATION  OF  THIS  PROVISION SHALL NOT BE AFFECTED BY THE LATER
BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION.
  (I) THE USE OF A GENETIC  MATERIAL  AFTER  THE  DEATH  OF  THE  PERSON
PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS
SECTION  AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH
PERSON AND THE FACILITY PROVIDING STORAGE OF THE  GENETIC  MATERIAL  AND
MAY  NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE
PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON.
  S 2. Paragraphs (a), (b),  (c)  and  (d)  of  section  11-1.5  of  the
estates,  powers  and  trusts  law,  paragraph (a) and subparagraph 1 of
paragraph (b) as amended, and such section as renumbered by chapter  686
of  the laws of 1967, and paragraph (d) as amended by chapter 634 of the
laws of 1985, are amended to read as follows:
  (a) Subject to his OR HER duty to  retain  sufficient  assets  to  pay
administration  and  reasonable  funeral expenses, debts of the decedent
and all taxes for which the estate is liable, a personal  representative
may, but, except as directed by will or court decree or order, shall not
be  required  to, pay any testamentary disposition or distributive share
before the completion of the publication of notice to creditors  or,  if
no  such notice is published, before the expiration of seven months from
the time letters testamentary or of administration are granted,  OR,  IF
NOTICE  OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN
GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC  CHILD  WHO  IS
ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3.
  (b)  Whenever  a disposition is directed by will to be paid in advance
of such publication of notice or the  expiration  of  such  seven  month
period  OR  THE  BIRTH  OF  A GENETIC CHILD ENTITLED TO INHERIT FROM THE
DECEDENT UNDER SECTION 4-1.3, the personal representative may require  a
bond, conditioned as follows:
  (1) That if debts of the decedent appear, and the assets of the estate
are  insufficient  to pay them or to pay other testamentary dispositions
entitled, under SECTION 13-1.3, to payment equally with or prior to that
of the disposition paid in advance,  the  beneficiary  to  whom  advance
payment  was  made  will  refund it, or the value thereof, together with
interest thereon and any costs incurred by reason of  such  payment,  or
such  ratable  portion  thereof, as is necessary to pay such debts or to
satisfy the rights, if any, of other beneficiaries under the will.
  (2) That if the will, under which the disposition was paid, is  denied
probate, on appeal or otherwise, such beneficiary will refund the entire
advance  payment,  together  with  interest  and  costs  as described in
subparagraph (1), to the personal representative entitled thereto.

S. 4779--A                          5

  (c) If, after the [publication of notice to creditors or the]  expira-
tion of seven months from the time letters are granted OR THE BIRTH OF A
GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3,
as  the  case may be, the personal representative refuses upon demand to
pay a disposition or distributive share, the person entitled thereto may
maintain  an  appropriate  action  or  proceeding against such represen-
tative. But, for the purpose of  computing  the  time  limited  for  its
commencement,  the  cause  of  action does not accrue until the personal
representative's account is judicially settled.
  (d) In any action or proceeding to compel payment of a disposition  or
distributive  share, the interest thereon, if any, shall, in the case of
a disposition, be at the rate fixed in the will or, if none is so fixed,
in any case at the rate of six percent per annum  commencing  THE  LATER
OF,  seven months from the time letters, including preliminary or tempo-
rary letters, are granted OR THE BIRTH OF A GENETIC CHILD OF  THE  DECE-
DENT ENTITLED TO INHERIT UNDER SECTION 4-1.3.
  S 3. This act shall take effect immediately and shall apply to estates
of  decedents  dying  on or after such date; provided, however, that the
provisions of paragraph (f) of section 4-1.3 of the estates, powers  and
trusts  law,  as  added  by  section one of this act, shall apply to the
wills of persons dying on  or  after  September  1,  2013,  to  lifetime
instruments  theretofore  executed which on said date are subject to the
grantor's power to revoke or amend,  and  to  all  lifetime  instruments
executed on or after such date.

S4779B (ACTIVE) - Bill Details

See Assembly Version of this Bill:
A7461
Law Section:
Estates, Powers and Trusts Law
Laws Affected:
Add §4-1.3, amd §11-1.5, EPT L

S4779B (ACTIVE) - Bill Texts

view summary

Relates to inheritance by children conceived after the death of a genetic parent.

view sponsor memo
BILL NUMBER:S4779B

TITLE OF BILL: An act to amend the estates, powers and trusts law, in
relation to rights of a child conceived after the death of a genetic
parent of such child

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her Surro-
gate's Court Advisory Committee.

This measure would amend the Estates, Powers and Trusts Law ("EPTL") to
provide rules governing the status, for purposes of inheritance and
participation in certain dispositions in instruments including wills and
trusts, of children conceived and born after the death of one or both of
the persons from whose sperm or ova they were created (defined under the
measure as the child's "genetic parent"). So long as the requirements
set forth in this measure are met, such children are distributees of
their genetic parents and are included in dispositions to the children
of the genetic parents made in instruments created by any person. The
measure also makes changes in various provisions of the EPTL necessary
to give effect to the rights of such children without creating undue
complications in existing law.

Advances in medical technology make it possible for a child to be
conceived after the death of one or both of the child's genetic parents
(often referred to as posthumously-conceived children). The status of
such children for purposes of inheritance and class gifts in wills and
trusts is not clear under existing law. With one exception, all of the
reported cases in the United States dealing with the inheritance or
succession rights of such children have involved the question whether or
not the children are the heirs of the parent who died before their
conception. If the children can be heirs of their predeceased parents
under state law, they are eligible for Social Security survivor benefits
based on the earnings record of their deceased genetic parent. (Astrue
v. Capato, _ U.S. _, 132 S.Ct. 2021, 182 L.Ed.2d 88 (2012)). There is no
New York caselaw dealing with the question whether posthumously-con-
ceived children are distributees of their deceased genetic parent, but
because EPTL 4-1.1(c) states: "(d)istributees of the decedent, conceived
beforehis or her death but born alive thereafter, take as if they were
born in his or her lifetime," it is highly unlikely that a New York
court could find such children to be distributees of their deceased
genetic parents, and the children would not eligible for Social Security
survivor benefits.

The only reported case in the United States dealing with the rights of
posthumously conceived children under a will or trust is a New York
case, Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct.
New York Co. 2007), where the Surrogate held that two children born to
the widow of a son of the creator of the trusts and conceived from the
son's stored sperm after the son's death were indeed their father's
children and therefore his father's issue, making them beneficiaries of
the trusts that were the subject of this construction proceeding. At the

end of her opinion, Surrogate Roth wrote: "There is a need for compre-
hensive legislation to resolve the issues raised by advances in biotech-
nology." (Id. at 204, 841 N.Y.S.2d at 212). This measure answers that
call and deals in a comprehensive way with the property rights of
posthumously-conceived children by adding to the EPTL a new section
4-1.3 and amending existing section 11-1.5.

1. Statutory requirements for the posthumously conceived child to be a
child of the genetic parent

The measure contains four requirements that must be met if what it calls
a genetic child is to be child of the "genetic parent" for purposes of
inheritance and gifts in wills and trusts. Proposed EPTL 4-1.3(b)(1)
would require a writing (requirements for which are set out in paragraph
(c)) in which the person storing sperm or ova, the "genetic parent,"
expressly consents to the use of that sperm or ova, the "genetic materi-
al," for posthumous reproduction and authorizes a person to make deci-
sions about the use of that genetic material after the death of the
genetic parent. Proposed EPTL 4-1.3(b)(2) would require the person
authorized in the writing to give notice within seven months of the
genetic parent's death to the personal representative of the genetic
parent's estate of the existence of the stored genetic material. If no
personal representative has received letters within four months of the
genetic parent's death, the notice must be given to a distributee of the
genetic parent within seven months of the genetic parent's death. In
addition, under proposed EPTL 4-1.3(b)(3) the authorized person must
record the writing in the office of the Surrogate granting letters on
the genetic parent's estate or, if letters have not issued, the writing
must be recorded in the office of the Surrogate having jurisdiction to
do so (the language in proposed EPTL 4-1.3(b)(3) is modeled on EPTL
13-2.3, requiring the recording of a power of attorney related to a
decedent's estate). Finally, proposed EPTL 4-1.3(b)(4) requires that the
genetic child be in utero within twenty-four months or born within thir-
ty-three months of the genetic parent's death.

2. Result of fulfilling the requirements

A. With respect to the estate of and instruments created by the genetic
parent.

As noted above, EPTL 4-1.1(c) requires that a distributee of a decedent
be conceived during the decedent's lifetime. In addition, EPTL
2-1.3(a)(2) provides that, unless the creator of an instrument
"expresses a contrary intention," a disposition to children or to any
class that is defined by parent-child relationships (such as issue,
descendants, heirs and terms "of like import"), whether that relation-
ship involves the creator or another, includes children "conceived
before but born alive after such disposition becomes effective."

If the four requirements of proposed EPTL 4-1.3(b) are satisfied, the
same provision states that the genetic child is a child of the genetic
parent, a distributee of the genetic parent and is included in any

disposition to a class in an instrument created by the genetic parent
notwithstanding EPTL 4-1.1(c) and 2-1.3(a)(2). Because the genetic child
can be a distributee of the genetic parent, he or she will be entitled
to Social Security survivor benefits based on the genetic parent's earn-
ing record. The child also will be included in any gift in an instrument
created by the genetic parent to the genetic parent's children, issue,
descendants, or other classes described by similar terms.

The provision of EPTL 5-3.2(b) limiting the meaning of "after-born
child" to a child born during the testator's lifetime or in gestation at
the testator's death is unchanged by proposed EPTL 4-1.3. If the genetic
parent's will makes a disposition to the genetic parent's children or
issue, the genetic child is included in the disposition but, if the will
makes no such disposition, the genetic child is not entitled to the
benefits of EPTL 5-3.2 and administration of the genetic parent's
testate estate will not be delayed waiting for the possible birth of a
genetic child. In every reported case involving genetic children, the
children have been born to the widow of the genetic parent. In such
cases, if the genetic parent died testate, it is highly likely that the
primary if not sole beneficiary of the will is the surviving spouse who
also will be the other parent of the genetic child and it is not neces-
sary to protect the child by guaranteeing the child an intestate portion
of the genetic parent's probate estate.

B. With respect to the estates of and instruments created by persons
other than the genetic parent:

i. In intestacy.

Proposed ETPL 4-1.3(b) provides that, if the requirements of the para-
graph are met, the genetic child is a child of the genetic parent. This
provision means that the genetic child will inherit through the genetic
parent so long as the genetic child is conceived during the lifetime of
the intestate decedent, is born alive and survives 120 hours (EPTL
2-1.6).

ii. In instruments.

Proposed EPTL 4-1.3(f) parallels EPTL 2-1.3(c), which deals with rights
of nonmarital children under the instruments of persons other than the
parents of the children. It provides that if the genetic child is enti-
tled to inherit from the genetic parent under proposed EPTL 4-1.3, the
genetic child is a child of the genetic parent for purposes of gifts in
instruments to children, issue, descendants and similar classes in
instruments, whether of the creator or of other persons. Because this is
a new provision, it is applicable only to wills of persons dying on or
after September 1, 2014 and to lifetime instruments executed before that
date but which on that date can be revoked or amended by the creator and
to all lifetime instruments executed on or after that date.

C. Examples

The following examples illustrate the workings of proposed EPTL 4-1.3(b)
and (f). They all start with the paradigmatic situation - husband depos-
its sperm for use by wife should he not survive a life threatening
illness or, where he survives treatment, should he thereupon become
totally infertile. All the examples assume that the requirements of
proposed EPTL 4-1.3(b) have been fulfilled, wife gives birth to a child
conceived with husband's sperm within the required time period, and that
child is therefore the child of husband.

Example 1: Husband dies intestate. Child is a distributee of husband who
is the child's father because proposed EPTL 4-1.3(b) overrides EPTL
4-1.1(c).

Example 2: Husband dies testate. The will is duly admitted to probate
and makes a disposition to "my issue" or "my children." Child is a bene-
ficiary of the disposition because proposed EPTL 4-1.3(b) also overrides
EPTL 2-1.3(a)(2).

Example 3: Shortly after husband's death, husband's mother (mother) dies
intestate survived by her spouse and issue. Child is a distributee of
husband's mother only if child is living at mother's death (or is en
ventre sa mere and is then born alive and survives for 120 hours)
because under EPTL 4-1.1(c) all of mother's distributees must at least
be conceived before her death.

Example 4: Shortly after husband's death, mother dies testate and her
will, duly admitted to probate, includes a general disposition of
$10,000 "to each of my grandchildren living at my death." Child partic-
ipates in the gift only if child is living at mother's death (or is en
ventre sa mere and is then born alive and survives for 120 hours).

Example 5: At mother's death, the testamentary QTIP trust created by
husband's father (father) terminates and the trust terms direct the
trustee to distribute the trust property to father's "issue, then
living, free of trust." Child is a remainder beneficiary of the trust
only if child is living at mother's death (or is en ventre sa mere and
is then born alive and survives for 120 hours) because under EPTL 2-1.3
a member of the class of "issue" must be alive when the disposition
becomes effective or at least have been conceived before and born alive
after the disposition becomes effective.

Example 6: Husband is the creator a revocable trust which on his death
divides into two trusts: Trust 1, to pay income to wife for life and, at
her death, to terminate with the trust property to be distributed free
of trust to husband's issue by representation; and Trust 2, to pay
income to husband's issue until the youngest is 30 years of age at which
time the trust terminates and the trust property is to be distributed to
husband's issue by representation. Child is a contingent remainder bene-
ficiary of Trust 1, and a present beneficiary and contingent remainder
beneficiary of Trust 2. Child is a child of husband under proposed EPTL
4-1.3(b), which overrides the provisions of EPTL 2-1.3(a)(2) which would
otherwise prevent child from being a beneficiary because child was

conceived after the dispositions became effective at husband's death and
thus would not be a child of husband under that provision.

Example 7: In any of the above examples, if the genetic child had been
in utero or born outside of the time limit in proposed EPTL 4-1.3, the
genetic child would not be a distributee of the genetic parent nor would
he or she be included in any of the classes involved in the examples,
even if conceived or born before the class closed.{1}

3. The required writing

Proposed EPTL 4-1.3(c) sets forth the requirements for the writing spec-
ified in proposed 4-1.3(b)(1). The writing must be signed by the genetic
parent in the presence of two witnesses at least eighteen years of age,
neither of whom is a person authorized to make decisions about the use
of the genetic parent's genetic material. The instrument must be signed
and witnessed not more than seven years before the genetic parent's
death. The instrument can be revoked only by a written instrument signed
by the genetic parent and executed in the same manner as the instrument
it revokes. It may not be altered or revoked by the will of the genetic
parent. It may authorize an alternate to make decisions if the first
person designated dies before the genetic parent or is unable to exer-
cise the authority granted under the instrument.

Proposed EPTL 4-1.3(c)(5) sets forth a model instrument.

4. Other provisions

Proposed EPTL 4-1.3(d) revokes the authority given under the written
instrument to the genetic parent's spouse should the marriage end in
divorce, annulment, or a judgment or order of legal separation is
entered against the spouse. (This is the same standard applicable to
revocation of dispositions to and beneficiary designations of an
ex-spouse under EPTL 5-1.4(f)(2).)

In order to prevent undue difficulties in opening administration of the
genetic parent's estate, proposed EPTL 4-1.3(e) modifies SCPA 1003 and
1403 by requiring that process shall not issue to a genetic child unless
the child is in being at the time process issues. In other words, the
possibility of the existence of a genetic child of a decedent will not
delay the issuing of letters to the decedent's personal representative.

Proposed EPTL 4-1.3(g) provides that a genetic child entitled to inherit
from a genetic parent under proposed EPTL 4-1.3(b) is included in the
terms "issue," "surviving issue" and "issue surviving" as used in EPTL
3-3.3, the anti-lapse statute. A genetic child would therefore take a
share of a lapsed gift on the same basis as the birth, adopted, or
nonmarital issue of the person to whom a testamentary disposition is
made but who dies before the testator and to which EPTL 3-3.3 applies.

Proposed EPTL 4-1.3(h) removes the possibility off the birth of a genet-
ic child from determinations of validity of a disposition under the rule

against perpetuities (EPTL 9-1.1). The exclusion of genetic children
from such determinations mirrors the exclusion of the possibility of
adoption in EPTL 9-1.3(e)(3).

Genetic material cannot be the subject of a disposition in any instru-
ment. In Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673 N.Y.S.2d 350
(1998), a unanimous Court of Appeals held that the disposition of pre-
embryos created by a husband and wife on the couple's divorce was
governed by the contracts between the fertility clinic and the couple.
The court put great weight on the freely made choices of the parties and
clearly did not equate the pre-embryos with "property" subject to dispo-
sition on divorce. In the case of preserved genetic material, proposed
EPTL 4-1.3 provides a comprehensive scheme under which the depositor of
the material can express his or her desires with regard to the use of
such material for posthumous reproduction. In light of Kass, it is
reasonable that proposed EPTL 4-1.3 and the agreement freely made
between the depositor and the depository govern the use of the genetic
material, to the exclusion of other agreements including the depositor's
will.

Because distribution of the genetic parent's estate may be delayed by
the possibility of the birth of a genetic child, this measure amends
EPTL 11-1.5 to deal with that possibility. Paragraph (a) states that the
personal representative need not pay a testamentary disposition or
distributive share before completion of the publication of notice to
creditors or if no notice is published, before the expiration of seven
months from the time of letters were granted. The measure amends the
statute to add to these two events the birth of a genetic child of the
decedent who is entitled to inherit under proposed EPTL 4-1.3, so long
as notice of the availability of the decedent's genetic material has
been given under the statute. Paragraph (b) is amended to allow the
personal representative to require a bond whenever the will directs a
disposition to be paid before the birth of a child entitled to inherit
under proposed EPTL 4-1.3 and paragraph (c) is amended to allow the
personal representative to refuse a demand to pay before the birth of a
child entitled to inherit under proposed EPTL 4-1.3. Finally, paragraph
(d) directs that interest be paid at the statutory 6% rate commencing at
the later of the expiration of seven months from the grant of letters or
the birth of a child entitled to inherit under proposed EPTL 4-1.3.
Because the rule of paragraph (a), which as amended allows the personal
representative to delay distribution until the birth of the posthumously
conceived child of the decedent is subject to "court decree or order,"
the rule can be modified by the court under appropriate circumstances.

This measure would have no fiscal impact on State or local government.
It would take effect immediately and apply to the estates of decedents
dying on or after that date, provided, however, that the provisions of
paragraph (f) of proposed EPTL 4-1.3, as added by section 1 of this act,
would apply to the wills of persons dying on or after September 1, 2014,
to lifetime instruments theretofore executed which on said date are
subject to the grantor's power to revoke or amend, and to all lifetime
instruments executed on or after such date.

2013 Legislative History: S. 4779-A (Senator Bonacic) (ref to Judici-
ary) A. 7461 (M. of A. Cook, Weinstein) (ord to 3rd Rdg, Cal. 365)

{1} Under proposed ETPL 4-1.3, neither of the posthumously conceived
children whose status as beneficiaries of trusts created by their genet-
ic father's father was confirmed in Matter of Martin B, 17 Misc.3d 198,
841 N.Y.S. 2d 207 (Sur. Ct. New York Co. 2007) would be children of
their genetic father or issue of his father because they were conceived
and born well outside of the applicable time limits.

view full text
download pdf
                    S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                 4779--B

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                             April 23, 2013
                               ___________

Introduced  by Sen. BONACIC -- (at request of the Office of Court Admin-
  istration) -- read twice and ordered printed, and when printed  to  be
  committed  to the Committee on Judiciary -- committee discharged, bill
  amended, ordered reprinted as amended and recommitted to said  commit-
  tee  --  recommitted  to the Committee on Judiciary in accordance with
  Senate Rule 6, sec. 8 -- committee discharged, bill  amended,  ordered
  reprinted as amended and recommitted to said committee

AN  ACT  to  amend  the  estates,  powers and trusts law, in relation to
  rights of a child conceived after the death of  a  genetic  parent  of
  such child

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The estates, powers and trusts law is amended by  adding  a
new section 4-1.3 to read as follows:
S 4-1.3 INHERITANCE  BY  CHILDREN CONCEIVED AFTER THE DEATH OF A GENETIC
          PARENT
  (A) WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT  OR  SUBJECT  MATTER
MANIFESTLY REQUIRES A DIFFERENT INTERPRETATION:
  (1)  "GENETIC  PARENT"  SHALL MEAN A MAN WHO PROVIDES SPERM OR A WOMAN
WHO PROVIDES OVA USED TO CONCEIVE A CHILD AFTER THE DEATH OF THE MAN  OR
WOMAN.
  (2)  "GENETIC  MATERIAL" SHALL MEAN SPERM OR OVA PROVIDED BY A GENETIC
PARENT.
  (3) "GENETIC CHILD" SHALL MEAN A CHILD OF THE SPERM OR OVA PROVIDED BY
A GENETIC PARENT, BUT ONLY IF AND WHEN SUCH CHILD IS BORN.
  (B) FOR PURPOSES OF THIS ARTICLE, A GENETIC CHILD IS THE CHILD OF  HIS
OR  HER  GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING PARAGRAPH (C) OF
SECTION 4-1.1 OF THIS PART, IS A  DISTRIBUTEE  OF  HIS  OR  HER  GENETIC
PARENT OR PARENTS AND, NOTWITHSTANDING SUBPARAGRAPH (2) OF PARAGRAPH (A)
OF  SECTION  2-1.3  OF  THIS  CHAPTER, IS INCLUDED IN ANY DISPOSITION OF
PROPERTY TO PERSONS DESCRIBED IN  ANY  INSTRUMENT  OF  WHICH  A  GENETIC

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10087-04-4

S. 4779--B                          2

PARENT  OF  THE  GENETIC  CHILD  WAS THE CREATOR AS THE ISSUE, CHILDREN,
DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR  BY  ANY
TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT:
  (1)  THE  GENETIC  PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO
THE PROVISIONS OF THIS SECTION NOT MORE  THAN  SEVEN  YEARS  BEFORE  THE
DEATH OF THE GENETIC PARENT:
  (A)  EXPRESSLY  CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO
POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND
  (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC
PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT;
  (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN
NOTICE, BY CERTIFIED MAIL, RETURN  RECEIPT  REQUESTED,  OR  BY  PERSONAL
DELIVERY,  THAT  THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR
THE PURPOSE OF CONCEIVING A GENETIC CHILD OF  THE  GENETIC  PARENT,  AND
SUCH WRITTEN NOTICE WAS GIVEN;
  (A)  WITHIN  SEVEN  MONTHS  FROM  THE  DATE OF THE ISSUANCE OF LETTERS
TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE  GENETIC  PARENT,
AS  THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR,
IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE  DEATH  OF  THE
GENETIC PARENT, AND
  (B)  WITHIN  SEVEN  MONTHS  OF  THE  DEATH  OF THE GENETIC PARENT TO A
DISTRIBUTEE OF THE GENETIC PARENT;
  (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL RECORDED THE
WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH  IN
THE  OFFICE  OF  THE  SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S
ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE  OF  THE
SURROGATE HAVING JURISDICTION TO GRANT THEM; AND
  (4)  THE  GENETIC  CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS
AFTER THE GENETIC PARENT'S DEATH OR  BORN  NO  LATER  THAN  THIRTY-THREE
MONTHS AFTER THE GENETIC PARENT'S DEATH.
  (C)  THE  WRITTEN  INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA-
GRAPH (B) OF THIS SECTION:
  (1) MUST BE SIGNED BY THE  GENETIC  PARENT  IN  THE  PRESENCE  OF  TWO
WITNESSES  WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH-
TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED  UNDER  THE
INSTRUMENT  TO  MAKE  DECISIONS  ABOUT  THE  USE OF THE GENETIC PARENT'S
GENETIC MATERIAL;
  (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE  GENETIC
PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES;
  (3)  MAY  NOT  BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE
GENETIC PARENT;
  (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF  THE
GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES
BEFORE  THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT-
ED; AND
  (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED  AND
DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED:

I, ____________________________________________________________________,
                         (YOUR NAME AND ADDRESS)
CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET-
IC  MATERIAL")  TO  CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH,
AND I AUTHORIZE

S. 4779--B                          3

________________________________________________________________________
                      (NAME AND ADDRESS OF PERSON)
TO  DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
IN THE EVENT THAT THE PERSON AUTHORIZED  ABOVE  DIES  BEFORE  ME  OR  IS
UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE

________________________________________________________________________
                      (NAME AND ADDRESS OF PERSON)
TO  DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE
A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
I UNDERSTAND THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION  IN  A
WRITTEN  DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO ALSO
SIGN THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN  EFFECT
FOR  SEVEN  YEARS  FROM THIS DAY AND THAT I CANNOT REVOKE OR MODIFY THIS
CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL.

SIGNED THIS       DAY OF         ,

_____________________________________________
(YOUR SIGNATURE)
STATEMENT OF WITNESSES:
I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT IS  PERSONALLY  KNOWN
TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM
DURESS.  HE  OR  SHE  SIGNED  THIS DOCUMENT IN MY PRESENCE. I AM NOT THE
PERSON AUTHORIZED IN THIS DOCUMENT TO CONTROL THE  USE  OF  THE  GENETIC
MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
WITNESS:
ADDRESS:
DATE:
WITNESS:
ADDRESS:
DATE:
  (D)  ANY  AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED BY THIS
SECTION TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE  TIME
OF  EXECUTION  OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL DECREE OR
JUDGMENT OF DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT  OR  ORDER
DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE
SPOUSE  OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE, RECOGNIZED
AS VALID UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR  JUDGMENT  OF
SEPARATION,  RECOGNIZED  AS VALID UNDER THE LAW OF THIS STATE, WHICH WAS
RENDERED AGAINST THE SPOUSE.
  (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF
A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR
HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS
IN BEING AT THE TIME PROCESS ISSUES.
  (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO
ANY DISPOSITION OF PROPERTY IN  ANY  INSTRUMENT  OF  WHICH  THE  GENETIC
PARENT  OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION 2-1.3
OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET-
IC PARENT UNDER THIS SECTION IS  A  CHILD  OF  THE  GENETIC  PARENT  FOR
PURPOSES  OF  A  DISPOSITION  OF  PROPERTY  TO  PERSONS DESCRIBED IN ANY
INSTRUMENT AS THE ISSUE, CHILDREN, DESCENDANTS,  HEIRS,  HEIRS  AT  LAW,
NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR
OR  OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS DYING
ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND FOURTEEN, TO LIFETIME  INSTRU-

S. 4779--B                          4

MENTS  THERETOFORE  EXECUTED  WHICH  ON  SAID  DATE  ARE  SUBJECT TO THE
GRANTOR'S POWER TO REVOKE OR AMEND,  AND  TO  ALL  LIFETIME  INSTRUMENTS
EXECUTED ON OR AFTER SUCH DATE.
  (G)  FOR  PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE",
"SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR
SHE IS ENTITLED TO INHERIT FROM HIS OR HER  GENETIC  PARENT  UNDER  THIS
SECTION.
  (H)  WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE-
TUITIES DEPENDS ON THE ABILITY OF A PERSON  TO  HAVE  A  CHILD  AT  SOME
FUTURE  TIME,  THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD
SHALL BE DISREGARDED. THIS PROVISION SHALL NOT  APPLY  FOR  ANY  PURPOSE
OTHER  THAN  THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE
RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY  OF
A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI-
TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY
THE  APPLICATION  OF  THIS  PROVISION SHALL NOT BE AFFECTED BY THE LATER
BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION.
  (I) THE USE OF A GENETIC  MATERIAL  AFTER  THE  DEATH  OF  THE  PERSON
PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS
SECTION  AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH
PERSON AND THE FACILITY PROVIDING STORAGE OF THE  GENETIC  MATERIAL  AND
MAY  NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE
PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON.
  S 2. Paragraphs (a), (b),  (c)  and  (d)  of  section  11-1.5  of  the
estates,  powers  and  trusts  law,  paragraph (a) and subparagraph 1 of
paragraph (b) as amended, and such section as renumbered by chapter  686
of  the laws of 1967, and paragraph (d) as amended by chapter 634 of the
laws of 1985, are amended to read as follows:
  (a) Subject to his OR HER duty to  retain  sufficient  assets  to  pay
administration  and  reasonable  funeral expenses, debts of the decedent
and all taxes for which the estate is liable, a personal  representative
may, but, except as directed by will or court decree or order, shall not
be  required  to, pay any testamentary disposition or distributive share
before the completion of the publication of notice to creditors  or,  if
no  such notice is published, before the expiration of seven months from
the time letters testamentary or of administration are granted,  OR,  IF
NOTICE  OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN
GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC  CHILD  WHO  IS
ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3.
  (b)  Whenever  a disposition is directed by will to be paid in advance
of such publication of notice or the  expiration  of  such  seven  month
period  OR  THE  BIRTH  OF  A GENETIC CHILD ENTITLED TO INHERIT FROM THE
DECEDENT UNDER SECTION 4-1.3, the personal representative may require  a
bond, conditioned as follows:
  (1) That if debts of the decedent appear, and the assets of the estate
are  insufficient  to pay them or to pay other testamentary dispositions
entitled, under SECTION 13-1.3, to payment equally with or prior to that
of the disposition paid in advance,  the  beneficiary  to  whom  advance
payment  was  made  will  refund it, or the value thereof, together with
interest thereon and any costs incurred by reason of  such  payment,  or
such  ratable  portion  thereof, as is necessary to pay such debts or to
satisfy the rights, if any, of other beneficiaries under the will.
  (2) That if the will, under which the disposition was paid, is  denied
probate, on appeal or otherwise, such beneficiary will refund the entire
advance  payment,  together  with  interest  and  costs  as described in
subparagraph (1), to the personal representative entitled thereto.

S. 4779--B                          5

  (c) If, after the [publication of notice to creditors or the]  expira-
tion of seven months from the time letters are granted OR THE BIRTH OF A
GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3,
as  the  case may be, the personal representative refuses upon demand to
pay a disposition or distributive share, the person entitled thereto may
maintain  an  appropriate  action  or  proceeding against such represen-
tative. But, for the purpose of  computing  the  time  limited  for  its
commencement,  the  cause  of  action does not accrue until the personal
representative's account is judicially settled.
  (d) In any action or proceeding to compel payment of a disposition  or
distributive  share, the interest thereon, if any, shall, in the case of
a disposition, be at the rate fixed in the will or, if none is so fixed,
in any case at the rate of six percent per annum  commencing  THE  LATER
OF,  seven months from the time letters, including preliminary or tempo-
rary letters, are granted OR THE BIRTH OF A GENETIC CHILD OF  THE  DECE-
DENT ENTITLED TO INHERIT UNDER SECTION 4-1.3.
  S 3. This act shall take effect immediately and shall apply to estates
of  decedents  dying  on or after such date; provided, however, that the
provisions of paragraph (f) of section 4-1.3 of the estates, powers  and
trusts  law,  as  added  by  section one of this act, shall apply to the
wills of persons dying on  or  after  September  1,  2014,  to  lifetime
instruments  theretofore  executed which on said date are subject to the
grantor's power to revoke or amend,  and  to  all  lifetime  instruments
executed on or after such date.

Comments

Open Legislation comments facilitate discussion of New York State legislation. All comments are subject to moderation. Comments deemed off-topic, commercial, campaign-related, self-promotional; or that contain profanity or hate speech; or that link to sites outside of the nysenate.gov domain are not permitted, and will not be published. Comment moderation is generally performed Monday through Friday.

By contributing or voting you agree to the Terms of Participation and verify you are over 13.