What's happening
This bill clarifies inheritance rights for children conceived after a genetic parent's death, specifying requirements for such children to be considered heirs.
Why it matters
Provides legal clarity for posthumously conceived children. by setting specific conditions under which a child conceived after the genetic parent’s death will be recognized as an heir—helping families and courts avoid uncertainty or lengthy disputes over inheritance rights.
Requires the surviving spouse to be the birth parent and prohibits pending divorce. at the time of the genetic parent’s death, ensuring that only children born from a still-intact marital relationship (at the time of death) are included as heirs, which could affect blended families or complex relationships.
Allows contrary intentions of the deceased to be proven. with clear and convincing evidence, and explicitly permits certain testimony that might otherwise be disqualified, giving families and courts more flexibility to respect the decedent’s true wishes if they can be clearly demonstrated.
Applies retroactively to estates of decedents dying on or after November 21, 2014. , potentially impacting existing estate plans and ongoing probate cases, which may alter the distribution of assets for some families and heirs.
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Who cares
Headline styles
Let Posthumous Kids Inherit
Plain English, a few words. Used as the page title.
Sponsors
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History
- Referred to judiciary
Full text
3 pagesUnderlined is new[Struck] is removedOfficial text on nysenate.gov ↗
STATE OF NEW YORK
8404
IN SENATE
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 Assembly, 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 instruments 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, 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] 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 fortyfive 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 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.
§ 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.
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 (b) of section 4-1.3 to provide that there will be an alternative process for determining inheritance by posthumously conceived children.
Read the full memo (929 words)
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.
Summaries, headlines and scores are AI-generated from the official bill text. How we score bills. Source: NYS Open Legislation.