What's happening
This bill expands inheritance rights for children conceived after a genetic parent's death, clarifying definitions and eligibility criteria.
Why it matters
Broadens who qualifies as a "genetic parent". by replacing gender-specific terms with the word "person," making the law more inclusive for individuals of any gender who provide genetic material for posthumous conception.
Clarifies and creates two legal pathways. for recognizing a posthumously conceived child as a legal heir: one based on documented consent and procedural requirements, and another, more streamlined path when the surviving spouse gives birth using genetic material collected after the genetic parent's death and no divorce was pending.
Establishes clearer timelines and evidence standards. for when a posthumous child can inherit, including requirements for written notice, registration of intent, and specific timeframes for conception and birth, as well as allowing certain testimony to establish a deceased parent's intent.
Applies changes retroactively to estates and wills. of decedents dying on or after November 21, 2014, potentially affecting previously settled or ongoing estate matters involving posthumously conceived children.
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Who cares
Headline styles
Allow Inheritance for Posthumous Children
Plain English, a few words. Used as the page title.
Sponsors
No co-sponsors yet.
History
- Committed to rules
- Advanced to third reading
- 2nd report cal.
- 1st report cal.149
- Referred to judiciary
- Referred to rules
Companion bill
The same bill in the other chamber. A bill becomes law when one version passes both houses and the governor signs it, so either number can carry it.
Posthumous Children Inheritance Rights
In Assembly Committee · Judiciary · Sponsor Peter Abbate
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
6698
2019-2020 Regular Sessions
IN SENATE
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 Assembly, 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 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:
(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 instruments 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.
Reflowed for reading: line numbers and page breaks removed. Cite the official text.
Sponsor's memo
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 (a) of section 4-1.3 of EPTL to make a technical change to the language describing posthumous conception.
Read the full memo (902 words)
Section 2 amends paragraph (b) of section 4-1.3 to provide that there will be an alternative process for determining inheritance by posthu- mously conceived children.
Section 3 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 4 makes a conforming change to paragraph (f) of section 4-1.3.
Section 5 ensures that the qualifications of a surviving spouse in section 4-1.3 are consistent with other provisions of EPTL.
Section 6 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 of EPTL includes 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 this procedure may be entirely appropriate for instances in which a death is anticipated, it is insufficient for those 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, however, there was no opportunity for the Liu family to meet any of the other require- ments in the statute.
This legislation is intended to remedy situations such as these by providing an alternative pathway for children conceived posthumously to establish their genetic origins and inherit their genetic parents' estates or, in the case of the Liu family, receive federal Social Secu- rity benefits. It provides a presumption that a posthumously-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 and more accessi- ble, more women are choosing to pursue in-vitro fertilization than ever before. It is therefore 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 antiquated intestacy laws to both reflect technolog- ical advancements and make the process of distributing an estate a little bit easier for families 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.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.