Bill Text: IL SB0883 | 2017-2018 | 100th General Assembly | Enrolled


Bill Title: Amends the Probate Act of 1975. Provides that for purposes of determining the rights to property passing upon the death of a decedent under any instrument or the intestacy rules of this State, unless a contrary intention is expressly stated in the instrument: (1) the decedent is a parent of a posthumous child in utero at the time of the decedent's death; and (2) if a decedent had consented in writing to be a parent of any child born of his or her gametes posthumously, and died before the insemination of the individual's gametes or embryo transfer, the decedent is a parent of any resulting child born within 36 months of the death of the decedent, but only if the holder of property subject to the instrument receives timely written notice, from a person to whom such consent applies that: (i) the decedent's gametes exist; and (ii) the person has the intent to use the gametes in a manner that could result in a child being born within 36 months of the death of the decedent. Provides that if the holder of the property does not receive the written notice, the holder of the property shall not be liable to the posthumously conceived child or any person claiming for or through the child for any property passing upon the death of the decedent. Contains applicability language.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Enrolled) 2017-05-19 - Passed Both Houses [SB0883 Detail]

Download: Illinois-2017-SB0883-Enrolled.html



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1 AN ACT concerning civil law.
2 Be it enacted by the People of the State of Illinois,
3represented in the General Assembly:
4 Section 5. The Probate Act of 1975 is amended by changing
5Section 2-3 as follows:
6 (755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
7 Sec. 2-3. Posthumous child.
8 (a) For purposes of the descent and distribution of
9property passing by intestate succession under this Act, a A
10posthumous child of a decedent shall receive the same share of
11an estate as if the child had been born in wedlock during the
12decedent's lifetime, but only if: (1) the ; provided that such
13posthumous child is shall have been in utero at the decedent's
14death; or (2) in the case of a posthumous child not in utero at
15the decedent's death, the conditions of subsection (b) are met.
16 (b) A posthumous child of a decedent not in utero at the
17decedent's death meets the requirements of this subsection (b)
18only if all of the following conditions apply:
19 (1) The child is born of the decedent's gametes,
20 whether those gametes form an embryo before or after the
21 decedent's death ("gametes").
22 (2) The child is born within 36 months of the death of
23 the decedent.

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1 (3) The decedent had provided consent in writing to be
2 a parent of any child born of such gametes posthumously and
3 had not revoked the consent prior to death.
4 (4) The administrator of the estate receives a signed
5 and acknowledged written notice with a copy of the written
6 consent attached within 6 months of the date of issuance of
7 a certificate of the decedent's death or entry of a
8 judgment determining the fact of the decedent's death,
9 whichever event occurs first, from a person to whom such
10 consent applies that:
11 (i) the decedent's gametes exist;
12 (ii) the person has the intent to use the gametes
13 in a manner that could result in a child being born
14 within 36 months of the death of the decedent; and
15 (iii) the person has the intent to raise any such
16 child as his or her child.
17 The requirements of this subsection impose no duty on the
18administrator of an estate to provide notice of death to any
19person and apply without regard to when any person receives
20notice of the decedent's death.
21 (c) For the purpose of determining the property rights of
22any person under any instrument, a posthumous child of a
23decedent who is in utero at the decedent's death shall be
24treated as a child of the decedent unless the intent to exclude
25the child is demonstrated by the express terms of the
26instrument by clear and convincing evidence.

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1 (d) For the purpose of determining the property rights of
2any person under any instrument, a posthumous child of a
3decedent not in utero at the decedent's death shall not be
4treated as a child of the decedent unless one of the following
5conditions applies:
6 (1) the intent to include the child is demonstrated by
7 the express terms of the instrument by clear and convincing
8 evidence; or
9 (2) the fiduciary or other holder of the property
10 treated the child as a child of the decedent for purposes
11 of a division or distribution of property made prior to
12 January 1, 2018 under the instrument based on a good faith
13 interpretation of Illinois law regarding the right of the
14 child to take property under the instrument.
15 (e) For purposes of subsection (d), the use in the
16instrument of terms such as "child", "children", "grandchild",
17"grandchildren", "descendants", and "issue", whether or not
18modified by phrases such as "biological", "genetic", "born to",
19or "of the body" shall not alone constitute clear and
20convincing evidence of an intent to include posthumous children
21not in utero at the decedent's death. An intent to exclude
22posthumous children not in utero at the decedent's death shall
23be presumed with respect to any instrument that does not
24address specifically how and when the class of posthumous
25children are to be determined with respect to each division or
26distribution provided for under the instrument as well as whose

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1posthumous children are to be included and when a posthumous
2child has to be born to be considered a beneficiary with
3respect to a particular division or distribution.
4 (f) No fiduciary or other person shall be liable to any
5other person for any action taken or benefit received prior to
6the effective date of this amendatory Act of the 100th General
7Assembly that was based on a good faith interpretation of
8Illinois law regarding the right of posthumous children to take
9property by intestate succession or under an instrument. If
10after the effective date of this amendatory Act of the 100th
11General Assembly the administrator of an estate does not
12receive the written notice required by subsection (b), the
13administrator of the estate shall not be liable to any
14posthumous child not in utero at the decedent's death or any
15person claiming for or through the child.
16 (g) The changes made to subsection (a) of this Section by
17this amendatory Act of the 100th General Assembly apply to the
18estates of all decedents who die on or after January 1, 2018.
19For the purpose of determining the property rights of any
20person under any instrument, the changes made by this
21amendatory Act of the 100th General Assembly apply to all
22instruments executed before, on, or after the effective date of
23this amendatory Act of the 100th General Assembly.
24(Source: P.A. 99-85, eff. 1-1-16.)
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