NY State Senate Bill 2019-S8404

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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Date of Action	Assembly Actions - Lowercase Senate Actions - UPPERCASE
May 22, 2020	referred to judiciary

2019-S8404 (ACTIVE) - Details

Current Committee:: Senate Judiciary
Law Section:: Estates, Powers and Trusts Law
Laws Affected:: Amd §§4-1.3 & 5-1.2, EPT L

2019-S8404 (ACTIVE) - Summary

Relates to inheritance by children conceived after the death of a genetic parent; provides that a genetic child is a distributee of his or her genetic parent if, absent clear and convincing evidence of a contrary intention of the deceased genetic parent, it is established that the person giving birth to the child is the surviving spouse of the genetic parent; the genetic material was collected after the genetic parent's death; and at the time of the genetic parent's death no divorce proceeding was pending.

2019-S8404 (ACTIVE) - Sponsor Memo

                                
 
BILL NUMBER: S8404

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the estates, powers and trusts law, in relation to
inheritance by children conceived after the death of a genetic parent

 
PURPOSE OR GENERAL IDEA OF BILL:

To amend the Estates, Powers and Trusts Law (EPTL) to establish a proc-
ess by which children who are posthumously conceived using the genetic
material of a decedent and the surviving spouse can be considered the
biological child of the decedent

 
SUMMARY OF PROVISIONS:

Section 1 of the bill amends paragraph (b) of section 4-1.3 to provide
that there will be an alternative process for determining inheritance by
posthumously conceived children.

Section 2 adds a new paragraph (b-1) to outline the alternative proce-
dure by which a posthumously conceived child can be presumed to be the
genetic child of the genetic parents.

Section 3 makes a conforming change to paragraph (f) of section 4-1.3.

Section 4 ensures that the qualifications of a surviving spouse in
section 4-1.3 are consistent with other provisions of EPTL.

Sections 5 through 8 were added to reflect changes to EPTL made in Part
L of Chapter 56 of 2020 (the Education, Labor, Housing and Family
Assistance budget bill).

Section 9 establishes the effective date.

 
JUSTIFICATION:

Normally, interested parties who want to determine if the child of a
decedent should inherit an estate when the child is conceived posthu-
mously using the genetic material of the decedent can turn to

Section 4-1.3 of the Estates, Powers and Trusts Law (EPTL) for guidance.
This section outlines several requirements that must be met before the
child can be considered "biological": 1) the child must be born within
33 months of the decedent's death, 2) the decedent must have provided a
written instrument consenting to the use of his/her genetic material and
authorizing a person to make decisions about that material, 3) the
person authorized must then record this written instrument with the
Surrogate Court within seven months of the death, and 4) the written
instrument must have been signed by the decedent in the presence of two
witnesses. While these requirements may be entirely reasonable for
instances in which a death is anticipated, they fail to account for
instances in which it is not.

To demonstrate this point, let us look no further than the case of NYPD
Detective Wenjian Liu, who was tragically murdered in his vehicle on
December 20th, 2014 while on duty with his partner Detective Rafael
Ramos. Det. Liu and his wife Pei Xia Chen had discussed having children
prior to his death, and so the hospital set aside Det. Liu's genetic
material so that Ms. Chen could pursue in-vitro fertilization at a later
date if she so chose. During the month of July 2017, more than 2 1/2
years after Det. Liu's death, Ms.  Chen gave birth to her daughter Ange-
lina. When Ms. Chen went to apply for federal Social Security benefits,
however, she was denied under a federal law which dictates that the
child must be born or conceived prior to the genetic parent's death in
order to automatically receive benefits. If this is not the case, the
child is then considered non-marital and the Social Security Adminis-
tration (SSA) turns to applicable state law to determine the biological
status of the child - and this is where EPTL 4-1.3 comes into play. In
the case at hand, Det. Liu and his wife meet only one of the four
requirements outlined above as the child was born within 33 months of
Det. Liu's death.  With a death so sudden and unexpected, how ever,
there was no opportunity for the Liu family to meet any of the other
requirements in the statute.

This legislation provides an alternative pathway for children conceived
posthumously to establish their genetic origins and inherit their genet-
ic parents' estates or, in the case of the Liu family, receive federal
Social Security benefits. It provides a presumption that a posthumous-
ly-conceived child is a genetic product of his/her genetic parents so
long as the person giving birth is a surviving spouse of the decedent,
the genetic material was collected after the genetic parent's death,
providing for cases in which the death is unexpected, and, at the time
of the genetic parent's death, no divorce proceeding was pending. This
presumption is rebuttable, however, as the child can only inherit the
estate in the absence of clear and convincing evidence of the decedent's
contrary intent.

With assisted reproductive technology becoming cheaper, more women are
choosing to pursue in-vitro fertilization than ever before. It is there-
fore only prudent that New York State update its laws sooner rather than
later and provide a pathway for biological children to inherit what is
rightfully theirs. Allowing Det. Liu's widow and child to receive Social
Security benefits is the very least we can do to honor his service and
the tremendous sacrifice he made on the night of December 20th, 2014.
The reforms reflected in this legislation will update New York's anti-
quated intestacy laws to both reflect technological advancements and
make the process of distributing an estate a little bit easier for fami-
lies who have suffered a premature death.

 
PRIOR LEGISLATIVE HISTORY:

New bill

 
FISCAL IMPLICATIONS:

None

 
EFFECTIVE DATE:
This act shall take effect immediately and apply to all estates of dece-
dents where the death occurred on or after November 21st, 2014.
Sections five through eight of this act shall take effect on the same
date and in the same manner as part L of chapter 56 of the laws of 2020.

2019-S8404 (ACTIVE) - Bill Text download pdf

                            
 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8404
 
                             I N  S E N A T E
 
                               May 22, 2020
                                ___________
 
 Introduced by Sen. GOUNARDES -- 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
   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. The opening paragraph of 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:
   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 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 it is established that:
   § 2. 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;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets

                       [ ] is old law to be omitted.
                                                            LBD13741-04-0

 S. 8404                             2
 
   (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.
   §  3. 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
 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.
   §  4.  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:
   § 5. The opening paragraph of paragraph (b) of section  4-1.3  of  the
 estates,  powers  and  trusts law, as amended by section 28 of part L of
 chapter 56 of the laws of 2020, is amended to read as follows:
   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  intended
 parent or parents and, notwithstanding paragraph (c) of section 4-1.1 of
 this  part,  is  a  distributee of his or her intended 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 an intended 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:
   § 6. The opening paragraph of paragraph (c) of section  4-1.3  of  the
 estates,  powers  and  trusts law, as amended by section 28 of part L of
 chapter 56 of the laws of 2020, is amended to read as follows:
   [If] EXCEPT AS PROVIDED IN PARAGRAPH (B-1) OF  THIS  SECTION,  IF  the
 child  was  conceived using the genetic material of the intended parent,
 it must further be established that:
   § 7. Paragraph (b-1) of section  4-1.3  of  the  estates,  powers  and
 trusts  law,  as added by section two of this act, is amended to read as
 follows:
   (b-1) Notwithstanding [paragraph]  PARAGRAPHS  (b)  AND  (C)  of  this
 section,  for  the  purposes  of  this article, a [genetic] child is the
 child of [his or her genetic parent or parents] A DECEDENT and, notwith-

 S. 8404                             3
 
 standing paragraph (c) of section 4-1.1 of this part, is  a  distributee
 of  [his  or  her genetic parent or parents] SUCH DECEDENT and, notwith-
 standing 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] SUCH
 DECEDENT 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, AND THE DECEDENT SHALL BE CONSIDERED THE INTENDED PARENT
 OF THE CHILD, if, absent clear and convincing  evidence  of  a  contrary
 intention  of  the [deceased genetic parent] DECEDENT, it is established
 that:
   (1) the [person giving birth to the child] OTHER  INTENDED  PARENT  is
 the surviving spouse of the genetic parent;
   (2) the CHILD WAS CONCEIVED USING THE GENETIC MATERIAL OF THE DECEDENT
 AND  THE  genetic  material  was  collected after the [genetic parent's]
 DECEDENT'S death; and
   (3) at the time of the [genetic parent's] DECEDENT'S death no  divorce
 proceeding was pending.
   Testimony  with  regard  to  such  contrary intention of the [deceased
 genetic parent] DECEDENT 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.
   § 8. Paragraph (g) of section 4-1.3 of the estates, powers and  trusts
 law,  as  amended  by  section 28 of part L of chapter 56 of the laws of
 2020, is amended to read as follows:
   (g) 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  intended  parent  of a child is the creator, for purposes of
 section 2-1.3 of this chapter a child who is entitled to inherit from an
 intended parent under this section is a child of the intended 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-
 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.
   § 9. 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 three 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; and provided further that sections five,
 six, seven, and eight of this act shall take effect on the same date and
 in  the  same  manner as part L of chapter 56 of the laws of 2020, takes
 effect.

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Senate Bill S8404

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Archive: Last Bill Status - In Senate Committee Judiciary Committee

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2019-S8404 (ACTIVE) - Details

2019-S8404 (ACTIVE) - Summary

2019-S8404 (ACTIVE) - Sponsor Memo

2019-S8404 (ACTIVE) - Bill Text download pdf

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Sponsored By

Andrew Gounardes

Archive: Last Bill Status - In Senate Committee Judiciary Committee

Actions

2019-S8404 (ACTIVE) - Details

2019-S8404 (ACTIVE) - Summary

2019-S8404 (ACTIVE) - Sponsor Memo

2019-S8404 (ACTIVE) - Bill Text download pdf

Comments