Senate Bill S6698

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6698
 
                        2019-2020 Regular Sessions
 
                             I N  S E N A T E
 
                            September 11, 2019
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Rules
 
 AN  ACT  to  amend  the  estates,  powers and trusts law, in relation to
   inheritance by children conceived after the death of a genetic parent
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Subparagraph  1  of paragraph (a) of section 4-1.3 of the
 estates, powers and trusts law, as added by chapter 439 of the  laws  of
 2014, is amended to read as follows:
   (1)  "Genetic  parent" shall mean a [man] PERSON who provides sperm or
 [a woman who provides] ova used to conceive a child after the  death  of
 the [man or woman] PERSON.
   §  2. Paragraph (b) of section 4-1.3 of the estates, powers and trusts
 law, as added by chapter 439 of the laws of 2014, is amended to read  as
 follows:
   (b)  For  purposes of this article AND EXCEPT AS PROVIDED IN PARAGRAPH
 (B-1) OF THIS SECTION, a genetic child is the child of his or her genet-
 ic 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, distributee (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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD13741-01-9
              

 S. 6698                             2
 
   (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.
   § 3. Section 4-1.3 of the estates, powers and trusts law is amended by
 adding a new paragraph (b-1) to read as follows:
   (B-1) NOTWITHSTANDING PARAGRAPH (B) OF THIS SECTION, FOR THE  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, DISTRIBUTEE (OR BY ANY TERM OF LIKE IMPORT) OF  THE
 CREATOR IF, ABSENT CLEAR AND CONVINCING EVIDENCE OF A CONTRARY INTENTION
 OF THE DECEASED GENETIC PARENT, IT IS ESTABLISHED THAT:
   (1)  THE  PERSON  GIVING BIRTH TO THE CHILD IS THE SURVIVING SPOUSE OF
 THE GENETIC PARENT;
   (2) THE GENETIC MATERIAL WAS  COLLECTED  AFTER  THE  GENETIC  PARENT'S
 DEATH; AND
   (3)  AT  THE  TIME OF THE GENETIC PARENT'S DEATH NO DIVORCE PROCEEDING
 WAS PENDING.
   TESTIMONY WITH REGARD TO  SUCH  CONTRARY  INTENTION  OF  THE  DECEASED
 GENETIC  PARENT  SHALL  NOT  BE  DISQUALIFIED  UNDER  SECTION FORTY-FIVE
 HUNDRED NINETEEN OF THE CIVIL PRACTICE LAW AND RULES PROVIDED THAT  SUCH
 TESTIMONY IS SUPPORTED BY OTHER EVIDENCE.
   §  4. Paragraph (f) of section 4-1.3 of the estates, powers and trusts
 law, as added by chapter 439 of the laws of 2014, is amended to read  as
 follows:
   (f) Except as provided in [paragraph] PARAGRAPHS (b) AND (B-1) 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  genetic  parent  under  this section is a child of the
 genetic parent for purposes of a  disposition  of  property  to  persons

 S. 6698                             3

 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 instruments theretofore executed which on said date are subject
 to the grantor's power to revoke or amend, and to all  lifetime  instru-
 ments executed on or after such date.
   §  5.  The  opening paragraph of paragraph (a) of section 5-1.2 of the
 estates, powers and trusts law, as amended by chapter 515 of the laws of
 1993, is amended to read as follows:
   A husband or wife is a surviving spouse within the  meaning,  and  for
 the  purposes  of  4-1.1, 4-1.3, 5-1.1, 5-1.1-A, 5-1.3, 5-3.1 and 5-4.4,
 unless it is established satisfactorily to the court having jurisdiction
 of the action or proceeding that:
   § 6. This act shall take effect immediately and shall apply to estates
 of decedents dying on or after November 21, 2014; provided however, that
 the provisions of paragraph (f) of section 4-1.3 of the estates,  powers
 and  trusts  law, as amended by section four 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.