Bill Text: NY S04779 | 2013-2014 | General Assembly | Amended
Bill Title: Relates to inheritance by children conceived after the death of a genetic parent.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Introduced - Dead) 2014-06-20 - SUBSTITUTED BY A7461A [S04779 Detail]
Download: New_York-2013-S04779-Amended.html
S T A T E O F N E W Y O R K ________________________________________________________________________ 4779--B 2013-2014 Regular Sessions I N S E N A T E April 23, 2013 ___________ Introduced by Sen. BONACIC -- (at request of the Office of Court Admin- istration) -- read twice and ordered printed, and when printed to be committed to the Committee on Judiciary -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said commit- tee -- recommitted to the Committee on Judiciary in accordance with Senate Rule 6, sec. 8 -- committee discharged, bill amended, ordered reprinted as amended and recommitted to said committee AN ACT to amend the estates, powers and trusts law, in relation to rights of a child conceived after the death of a genetic parent of such child THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM- BLY, DO ENACT AS FOLLOWS: 1 Section 1. The estates, powers and trusts law is amended by adding a 2 new section 4-1.3 to read as follows: 3 S 4-1.3 INHERITANCE BY CHILDREN CONCEIVED AFTER THE DEATH OF A GENETIC 4 PARENT 5 (A) WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT OR SUBJECT MATTER 6 MANIFESTLY REQUIRES A DIFFERENT INTERPRETATION: 7 (1) "GENETIC PARENT" SHALL MEAN A MAN WHO PROVIDES SPERM OR A WOMAN 8 WHO PROVIDES OVA USED TO CONCEIVE A CHILD AFTER THE DEATH OF THE MAN OR 9 WOMAN. 10 (2) "GENETIC MATERIAL" SHALL MEAN SPERM OR OVA PROVIDED BY A GENETIC 11 PARENT. 12 (3) "GENETIC CHILD" SHALL MEAN A CHILD OF THE SPERM OR OVA PROVIDED BY 13 A GENETIC PARENT, BUT ONLY IF AND WHEN SUCH CHILD IS BORN. 14 (B) FOR PURPOSES OF THIS ARTICLE, A GENETIC CHILD IS THE CHILD OF HIS 15 OR HER GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING PARAGRAPH (C) OF 16 SECTION 4-1.1 OF THIS PART, IS A DISTRIBUTEE OF HIS OR HER GENETIC 17 PARENT OR PARENTS AND, NOTWITHSTANDING SUBPARAGRAPH (2) OF PARAGRAPH (A) 18 OF SECTION 2-1.3 OF THIS CHAPTER, IS INCLUDED IN ANY DISPOSITION OF 19 PROPERTY TO PERSONS DESCRIBED IN ANY INSTRUMENT OF WHICH A GENETIC EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets [ ] is old law to be omitted. LBD10087-04-4 S. 4779--B 2 1 PARENT OF THE GENETIC CHILD WAS THE CREATOR AS THE ISSUE, CHILDREN, 2 DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR BY ANY 3 TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT: 4 (1) THE GENETIC PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO 5 THE PROVISIONS OF THIS SECTION NOT MORE THAN SEVEN YEARS BEFORE THE 6 DEATH OF THE GENETIC PARENT: 7 (A) EXPRESSLY CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO 8 POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND 9 (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC 10 PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT; 11 (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS 12 ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN 13 NOTICE, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL 14 DELIVERY, THAT THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR 15 THE PURPOSE OF CONCEIVING A GENETIC CHILD OF THE GENETIC PARENT, AND 16 SUCH WRITTEN NOTICE WAS GIVEN; 17 (A) WITHIN SEVEN MONTHS FROM THE DATE OF THE ISSUANCE OF LETTERS 18 TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE GENETIC PARENT, 19 AS THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR, 20 IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE DEATH OF THE 21 GENETIC PARENT, AND 22 (B) WITHIN SEVEN MONTHS OF THE DEATH OF THE GENETIC PARENT TO A 23 DISTRIBUTEE OF THE GENETIC PARENT; 24 (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS 25 ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL RECORDED THE 26 WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH IN 27 THE OFFICE OF THE SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S 28 ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE OF THE 29 SURROGATE HAVING JURISDICTION TO GRANT THEM; AND 30 (4) THE GENETIC CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS 31 AFTER THE GENETIC PARENT'S DEATH OR BORN NO LATER THAN THIRTY-THREE 32 MONTHS AFTER THE GENETIC PARENT'S DEATH. 33 (C) THE WRITTEN INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA- 34 GRAPH (B) OF THIS SECTION: 35 (1) MUST BE SIGNED BY THE GENETIC PARENT IN THE PRESENCE OF TWO 36 WITNESSES WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH- 37 TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED UNDER THE 38 INSTRUMENT TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S 39 GENETIC MATERIAL; 40 (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE GENETIC 41 PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES; 42 (3) MAY NOT BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE 43 GENETIC PARENT; 44 (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF THE 45 GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES 46 BEFORE THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT- 47 ED; AND 48 (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED AND 49 DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED: 50 I, ____________________________________________________________________, 51 (YOUR NAME AND ADDRESS) 52 CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET- 53 IC MATERIAL") TO CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH, 54 AND I AUTHORIZE S. 4779--B 3 ________________________________________________________________________ 1 (NAME AND ADDRESS OF PERSON) 2 TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE 3 A CHILD OR CHILDREN OF MINE AFTER MY DEATH. 4 IN THE EVENT THAT THE PERSON AUTHORIZED ABOVE DIES BEFORE ME OR IS 5 UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE ________________________________________________________________________ 6 (NAME AND ADDRESS OF PERSON) 7 TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE 8 A CHILD OR CHILDREN OF MINE AFTER MY DEATH. 9 I UNDERSTAND THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION IN A 10 WRITTEN DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO ALSO 11 SIGN THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN EFFECT 12 FOR SEVEN YEARS FROM THIS DAY AND THAT I CANNOT REVOKE OR MODIFY THIS 13 CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL. 14 SIGNED THIS DAY OF , 15 _____________________________________________ 16 (YOUR SIGNATURE) 17 STATEMENT OF WITNESSES: 18 I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT IS PERSONALLY KNOWN 19 TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM 20 DURESS. HE OR SHE SIGNED THIS DOCUMENT IN MY PRESENCE. I AM NOT THE 21 PERSON AUTHORIZED IN THIS DOCUMENT TO CONTROL THE USE OF THE GENETIC 22 MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT. 23 WITNESS: 24 ADDRESS: 25 DATE: 26 WITNESS: 27 ADDRESS: 28 DATE: 29 (D) ANY AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED BY THIS 30 SECTION TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE TIME 31 OF EXECUTION OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL DECREE OR 32 JUDGMENT OF DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT OR ORDER 33 DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE 34 SPOUSE OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE, RECOGNIZED 35 AS VALID UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR JUDGMENT OF 36 SEPARATION, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE, WHICH WAS 37 RENDERED AGAINST THE SPOUSE. 38 (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF 39 A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR 40 HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS 41 IN BEING AT THE TIME PROCESS ISSUES. 42 (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO 43 ANY DISPOSITION OF PROPERTY IN ANY INSTRUMENT OF WHICH THE GENETIC 44 PARENT OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION 2-1.3 45 OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET- 46 IC PARENT UNDER THIS SECTION IS A CHILD OF THE GENETIC PARENT FOR 47 PURPOSES OF A DISPOSITION OF PROPERTY TO PERSONS DESCRIBED IN ANY 48 INSTRUMENT AS THE ISSUE, CHILDREN, DESCENDANTS, HEIRS, HEIRS AT LAW, 49 NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR 50 OR OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS DYING 51 ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND FOURTEEN, TO LIFETIME INSTRU- S. 4779--B 4 1 MENTS THERETOFORE EXECUTED WHICH ON SAID DATE ARE SUBJECT TO THE 2 GRANTOR'S POWER TO REVOKE OR AMEND, AND TO ALL LIFETIME INSTRUMENTS 3 EXECUTED ON OR AFTER SUCH DATE. 4 (G) FOR PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE", 5 "SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR 6 SHE IS ENTITLED TO INHERIT FROM HIS OR HER GENETIC PARENT UNDER THIS 7 SECTION. 8 (H) WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE- 9 TUITIES DEPENDS ON THE ABILITY OF A PERSON TO HAVE A CHILD AT SOME 10 FUTURE TIME, THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD 11 SHALL BE DISREGARDED. THIS PROVISION SHALL NOT APPLY FOR ANY PURPOSE 12 OTHER THAN THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE 13 RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY OF 14 A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI- 15 TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY 16 THE APPLICATION OF THIS PROVISION SHALL NOT BE AFFECTED BY THE LATER 17 BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION. 18 (I) THE USE OF A GENETIC MATERIAL AFTER THE DEATH OF THE PERSON 19 PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS 20 SECTION AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH 21 PERSON AND THE FACILITY PROVIDING STORAGE OF THE GENETIC MATERIAL AND 22 MAY NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE 23 PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON. 24 S 2. Paragraphs (a), (b), (c) and (d) of section 11-1.5 of the 25 estates, powers and trusts law, paragraph (a) and subparagraph 1 of 26 paragraph (b) as amended, and such section as renumbered by chapter 686 27 of the laws of 1967, and paragraph (d) as amended by chapter 634 of the 28 laws of 1985, are amended to read as follows: 29 (a) Subject to his OR HER duty to retain sufficient assets to pay 30 administration and reasonable funeral expenses, debts of the decedent 31 and all taxes for which the estate is liable, a personal representative 32 may, but, except as directed by will or court decree or order, shall not 33 be required to, pay any testamentary disposition or distributive share 34 before the completion of the publication of notice to creditors or, if 35 no such notice is published, before the expiration of seven months from 36 the time letters testamentary or of administration are granted, OR, IF 37 NOTICE OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN 38 GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC CHILD WHO IS 39 ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3. 40 (b) Whenever a disposition is directed by will to be paid in advance 41 of such publication of notice or the expiration of such seven month 42 period OR THE BIRTH OF A GENETIC CHILD ENTITLED TO INHERIT FROM THE 43 DECEDENT UNDER SECTION 4-1.3, the personal representative may require a 44 bond, conditioned as follows: 45 (1) That if debts of the decedent appear, and the assets of the estate 46 are insufficient to pay them or to pay other testamentary dispositions 47 entitled, under SECTION 13-1.3, to payment equally with or prior to that 48 of the disposition paid in advance, the beneficiary to whom advance 49 payment was made will refund it, or the value thereof, together with 50 interest thereon and any costs incurred by reason of such payment, or 51 such ratable portion thereof, as is necessary to pay such debts or to 52 satisfy the rights, if any, of other beneficiaries under the will. 53 (2) That if the will, under which the disposition was paid, is denied 54 probate, on appeal or otherwise, such beneficiary will refund the entire 55 advance payment, together with interest and costs as described in 56 subparagraph (1), to the personal representative entitled thereto. S. 4779--B 5 1 (c) If, after the [publication of notice to creditors or the] expira- 2 tion of seven months from the time letters are granted OR THE BIRTH OF A 3 GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3, 4 as the case may be, the personal representative refuses upon demand to 5 pay a disposition or distributive share, the person entitled thereto may 6 maintain an appropriate action or proceeding against such represen- 7 tative. But, for the purpose of computing the time limited for its 8 commencement, the cause of action does not accrue until the personal 9 representative's account is judicially settled. 10 (d) In any action or proceeding to compel payment of a disposition or 11 distributive share, the interest thereon, if any, shall, in the case of 12 a disposition, be at the rate fixed in the will or, if none is so fixed, 13 in any case at the rate of six percent per annum commencing THE LATER 14 OF, seven months from the time letters, including preliminary or tempo- 15 rary letters, are granted OR THE BIRTH OF A GENETIC CHILD OF THE DECE- 16 DENT ENTITLED TO INHERIT UNDER SECTION 4-1.3. 17 S 3. This act shall take effect immediately and shall apply to estates 18 of decedents dying on or after such date; provided, however, that the 19 provisions of paragraph (f) of section 4-1.3 of the estates, powers and 20 trusts law, as added by section one of this act, shall apply to the 21 wills of persons dying on or after September 1, 2014, to lifetime 22 instruments theretofore executed which on said date are subject to the 23 grantor's power to revoke or amend, and to all lifetime instruments 24 executed on or after such date.