§ 4-1.3 Inheritance by children conceived after the death of an intended

parent

(a) When used in this article, unless the context or subject matter
manifestly requires a different interpretation:

(1) "Genetic material" shall mean sperm or ova provided by a genetic
parent.

(2) "Child" shall mean a child conceived through assisted
reproduction.

(3) "Intended parent" shall have the same meaning as defined in
section 581-102 of the family court act.

(b) For purposes of this article, 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:

(1) the intended parent in a written instrument executed pursuant to
the provisions of this section not more than seven years before the
death of the intended parent expressly consented that if assisted
reproduction were to occur after the death of the intended parent, the
deceased individual would be a parent of the child; and

(2) the child was in utero no later than twenty-four months after the
intended parent's death or born no later than thirty-three months after
the intended parent's death.

(c) If the child was conceived using the genetic material of the
intended parent, it must further be established that:

(1) the intended parent in a written instrument executed pursuant to
the provisions of this section not more than seven years before the
death of the intended parent authorized a person to make decisions about
the use of the intended parent's genetic material after the death of the
intended parent;

(2) the person authorized in the written instrument to make decisions
about the use of the intended parent's genetic material gave written
notice, by certified mail, return receipt requested, or by personal
delivery, that the intended parent's genetic material was available for
the purpose of conceiving a child of the intended 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 intended 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
intended parent, and

(B) within seven months of the death of the intended parent to a
distributee of the intended parent; and

(3) the person authorized in the written instrument to make decisions
about the use of the intended parent's genetic material recorded the
written instrument within seven months of the intended parent's death in
the office of the surrogate granting letters on the intended parent's
estate, or, if no such letters have been granted, in the office of the
surrogate having jurisdiction to grant them.

(d) The written instrument referred to in subparagraph (1) of
paragraph (b) of this section and subparagraph (1) of paragraph (c) of
this section:

(1) must be signed by the intended parent in the presence of two
witnesses who also sign the instrument referred to in subparagraph (1)
of paragraph (c) of this section, both of whom are at least eighteen
years of age and neither of whom is a person authorized under the
instrument to make decisions about the use of the intended parent's
genetic material;

(2) may be revoked only by a written instrument signed by the intended
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
intended parent;

(4) an instrument referred to in subparagraph (1) of paragraph (c) of
this section may authorize an alternate to make decisions about the use
of the intended parent's genetic material if the first person so
designated dies before the intended parent or is unable to exercise the
authority granted;

(5) an instrument referred to in subparagraph (1) of paragraph (b) of
this section may be substantially in the following form and must be
signed and dated by the intended parent and properly witnessed:
I, ____________________________________________________________________,

(Your name and address)
consent to the use of assisted reproduction 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:

(6) may be substantially in the following form and must be signed and
dated by the intended parent and properly witnessed:
I, ____________________________________________________________________,

(Your name and address)
consent to the use of my (sperm or ova) (referred to below as my
"genetic material") to conceive a child or children of mine after my
death, and I authorize
________________________________________________________________________

(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:

(e) Any authority granted in a written instrument authorized by this
section to a person who is the spouse of the intended 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 intended 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.

(f) Process shall not issue to a child who is a distributee of an
intended 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.

(g) Except as provided in paragraph (b) 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 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.

(h) For purposes of section 3-3.3 of this chapter the terms "issue",
"surviving issue" and "issue surviving" include a child if he or she is
entitled to inherit from his or her intended parent under this section.

(i) Where the validity of a disposition under the rule against
perpetuities depends on the ability of a person to have a child at some
future time, the possibility that such person may have a child conceived
using assisted reproduction 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 validity 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 child conceived using assisted
reproduction disregarded under this provision.

(j) 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.