A07461 Summary:

BILL NO    A07461A

SAME AS    SAME AS S04779-B

SPONSOR    Cook (MS)

COSPNSR    Weinstein

MLTSPNSR   

Add S4-1.3, amd S11-1.5, EPT L

Relates to inheritance by children conceived after the death of a genetic
parent.
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A07461 Actions:

BILL NO    A07461A

05/21/2013 referred to judiciary
06/04/2013 reported referred to rules
06/10/2013 reported 
06/10/2013 rules report cal.162
06/10/2013 ordered to third reading rules cal.162
06/12/2013 passed assembly
06/12/2013 delivered to senate
06/12/2013 REFERRED TO JUDICIARY
01/08/2014 DIED IN SENATE
01/08/2014 RETURNED TO ASSEMBLY
01/08/2014 ordered to third reading cal.365
02/10/2014 amended on third reading 7461a
06/10/2014 passed assembly
06/10/2014 delivered to senate
06/10/2014 REFERRED TO JUDICIARY
06/20/2014 SUBSTITUTED FOR S4779B
06/20/2014 3RD READING CAL.192
06/20/2014 PASSED SENATE
06/20/2014 RETURNED TO ASSEMBLY
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A07461 Votes:

A07461 06/12/2013 127/14
AbbateYColtonYGarbariNOKearnsYMillmanYRiveraERStevensER
AbinantYCookYGibsonYKellnerERMontesaNORobertsYStirpeY
ArroyoYCorwinYGiglioYKimYMorelleYRobinsoERSweeneyY
AubryYCrespoYGjonajYKolbYMosleyYRodriguERTediscoY
BarclayYCrouchYGlickYLalorNOMoyaYRosaYTenneyY
BarrettYCurranNOGoldfedYLavineYNojayNORosenthYThieleY
BarronABCusickYGoodellNOLentolYNolanYRozicYTitoneY
BenedetYCymbrowYGottfriYLiftonYOaksYRussellYTitusY
BlankenYDenDekkYGrafNOLopezYO'DonneYRyanYWalterY
BorelliNODinowitYGuntherYLupardoYOrtizYSaladinYWeinsteY
BoylandYDiPietrNOHawleyYLupinacYOtisYSantabaYWeisenbY
BraunstYDupreyYHeastieYMageeYPalmesaYScarborYWeprinY
BrennanYEnglebrYHennessYMagnareYPaulinYSchimelYWrightY
BrindisYEspinalYHevesiYMaiselYPeoplesYSchimmiYZebrowsY
BronsonYFahyYHikindYMalliotNOPerryYSepulveYMr SpkrY
Brook-KYFarrellYHooperYMarkeyYPretlowYSimanowY
BuchwalYFinchYJacobsYMayerYQuartYSimotasY
ButlerYFitzpatYJaffeeYMcDonalYRaNOSkartadY
CahillYFriendNOJohnsYMcDonouNORabbittYSkoufisY
CamaraYGabryszYJordanNOMcKevitYRaiaYSolagesY
CerettoYGalefYKatzYMcLaughYRamosYStecY
ClarkYGanttYKavanagYMillerYReilichYSteckY

A07461A06/10/2014 98/36
AbbateYCorwinNOGlickYLavineYNolanYRozicYTitusY
AbinantYCrespoYGoldfedYLentolYOaksNORussellYWalterNO
ArroyoERCrouchYGoodellNOLiftonYO'DonneYRyanERWeinsteY
AubryYCurranNOGottfriYLopezNOOrtizYSaladinNOWeisenbER
BarclayNOCusickYGrafNOLupardoYOtisYSantabaYWeprinY
BarrettYCymbrowYGuntherYLupinacYPalmesaNOScarborYWrightY
BenedetYDavilaYHawleyNOMageeYPalumboNOSchimelYZebrowsY
BlankenNODenDekkYHeastieYMagnareERPaulinYSchimmiYMr SpkrY
BorelliNODinowitYHennessYMalliotNOPeoplesYSepulveY
BraunstYDiPietrNOHevesiYMarkeyYPerryYSimanowY
BrennanYDupreyYHikindYMayerYPichardYSimotasY
BrindisYEnglebrYHooperYMcDonalYPretlowYSkartadY
BronsonYFahyYJacobsYMcDonouNOQuartYSkoufisY
Brook-KYFarrellYJaffeeYMcKevitNORaNOSolagesY
BuchwalYFinchNOJohnsNOMcLaughNORaiaNOStecNO
ButlerNOFitzpatNOKatzNOMillerYRamosYSteckY
CahillYFriendNOKavanagYMillmanYRiveraYStirpeY
CamaraYGalefYKearnsYMontesaNORobertsYSweeneyY
CerettoYGanttYKellnerABMorelleYRobinsoYTediscoNO
ClarkYGarbariNOKimYMosleyYRodriguYTenneyNO
ColtonYGiglioNOKolbNOMoyaYRosaYThieleY
CookYGjonajNOLalorNONojayERRosenthYTitoneY

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A07461 Memo:

BILL NUMBER:A7461A

TITLE OF BILL:  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

This is one in a series of measures being introduced at the request of
the Chief Administrative Judge upon the recommendation of her
Surrogate's Court Advisory Committee.

This measure would amend the Estates, Powers and Trusts Law ("EPTL")
to provide rules governing the status, for purposes of inheritance and
participation in certain dispositions in instruments including wills
and trusts, of children conceived and born after the death of one or
both of the persons from whose sperm or ova they were created (defined
under the measure as the child's "genetic parent"). So long as the
requirements set forth in this measure are met, such children are
distributees of their genetic parents and are included in dispositions
to the children of the genetic parents made in instruments created by
any person. The measure also makes changes in various provisions of
the EPTL necessary to give effect to the rights of such children
without creating undue complications in existing law.

Advances in medical technology make it possible for a child to be
conceived after the death of one or both of the child's genetic
parents (often referred to as posthumously-conceived children). The
status of such children for purposes of inheritance and class gifts in
wills and trusts is not clear under existing law. With one exception,
all of the reported cases in the United States dealing with the
inheritance or succession rights of such children have involved the
question whether or not the children are the heirs of the parent who
died before their conception. If the children can be heirs of their
predeceased parents under state law, they are eligible for Social
Security survivor benefits based on the earnings record of their
deceased genetic parent. (Astrue v. Caputo,_ U.S._ 132 S.Ct. 2021, 182
L.Ed.2d 88 (2012)). There is no New York caselaw dealing with the
question whether posthumously-conceived children are distributees of
their deceased genetic parent, but because EPTL 4-1.1(c) states:
"distributees of the decedent, conceived before his or her death but
born alive thereafter, take as if they were born in his or her
lifetime," it is highly unlikely that a New York court could find such
children to be distributees of their deceased genetic parents, and the
children would not eligible for Social Security survivor benefits.

The only reported case in the United States dealing with the rights of
posthumously conceived children under a will or trust is a New York
case, Matter of Martin B., 17 Misc.3d 198, 841 N.Y.S.2d 207 (Sur. Ct.
New York Co. 2007), where the Surrogate held that two children born to
the widow of a son of the creator of the trusts and conceived from the
son's stored sperm after the son's death were indeed their father's
children and therefore his father's issue, making them beneficiaries
of the trusts that were the subject of this construction proceeding.
At the end of her opinion, Surrogate Roth wrote: "There is a need for
comprehensive legislation to resolve the issues raised by advances in
biotechnology." (Id. at 204, 841 N.Y.S.2d at 212). This measure
answers that call and deals in a comprehensive way with the property


rights of posthumously-conceived children by adding to the EPTL a new
section 4-1.3 and amending existing section 11-1.5.

1. Statutory-requirements for the posthumously conceived child to be a
child of the genetic parent

The measure contains four requirements that must be met if what it
calls a genetic child is to be child of the "genetic parent" for
purposes of inheritance and gifts in wills and trusts. Proposed EPTL
4-1.3 (b)(1) would require a writing (requirements for which are set
out in paragraph (c)) in which the person storing sperm or ova, the
"genetic parent," expressly consents to the use of that sperm or ova,
the "genetic material," for posthumous reproduction and authorizes a
person to make decisions about the use of that genetic material after
the death of the genetic parent. Proposed EPTL 4-1.3 (b)(2) would
require the person authorized in the writing to give notice within
seven months of the genetic parent's death to the personal
representative of the genetic parent's estate of the existence of the
stored genetic material. If no personal representative has received
letters within four months of the genetic parent's death, the notice
must be given to a distributee of the genetic parent within seven
months of the genetic parent's death. In addition, under proposed EPTL
4-1.3(b)(3) the authorized person must record the writing in the
office of the Surrogate granting letters on the genetic parent's
estate or, if letters have not issued, the writing must be recorded in
the office of the Surrogate having jurisdiction to do so (the language
in proposed EPTL 4-1.3(b)(3) is modeled on EPTL 13-2.3, requiring the
recording of a power of attorney related to a decedent's estate).
Finally, proposed EPTL 4-1.3(b)(4) requires that the genetic child be
in utero within twenty-four months or born within thirty-three months
of the genetic parent's death.

2. Result of fulfilling the requirements

A. With respect to the estate of and instruments created by the
genetic parent.

As noted above, EPTL 4-1.1(c) requires that a distributee of a
decedent be conceived during the decedent's lifetime. In addition,
EPTL 2-1.3(a) (2) provides that, unless the creator of an instrument
"expresses a contrary intention," a disposition to children or to any
class that is defined by parent-child relationships (such as issue,
descendants, heirs and terms "of like import"), whether that
relationship involves the creator or another, includes children
"conceived before but born alive after such disposition becomes
effective."

If the four requirements of proposed EPTL 4-1.3(b) are satisfied, the
same provision states that the genetic child is a child of the genetic
parent, a distributee of the genetic parent and is included in any
disposition to a class in an instrument created by the genetic parent
notwithstanding EPTL 4-1.1(c) and 2-1.3(a)(2). Because the genetic
child can be a distributee of the genetic parent, he or she will be
entitled to Social Security survivor benefits based on the genetic
parent's earning record. The child also will be included in any gift
in an instrument created by the genetic parent to the genetic parent's


children, issue, descendants, or other classes described by similar
terms.

The provision of EPTL 5-3.2(b) limiting the meaning of "after-born
child" to a child born during the testator's lifetime or in gestation
at the testator's death is unchanged by proposed EPTL 4-1.3. If the
genetic parent's will makes a disposition to the genetic parent's
children or issue, the genetic child is included in the disposition
but, if the will makes no such disposition, the genetic child is not
entitled to the benefits of EPTL 5-3.2 and administration of the
genetic parent's testate estate will not be delayed waiting for the
possible birth of a genetic child. In every reported case involving
genetic children, the children have been born to the widow of the
genetic parent. In such cases, if the genetic parent died testate, it
is highly likely that the primary if not sole beneficiary of the will
is the surviving spouse who also will be the other parent of the
genetic child and it is not necessary to protect the child by
guaranteeing the child an intestate portion of the genetic parent's
probate estate.

B. With respect to the estates of and instruments created by persons
other than the genetic parent:

i. In intestacy.

Proposed ETPL 4-1.3 (b) provides that, if the requirements of the
paragraph are met, the genetic child is a child of the genetic parent.
This provision means that the genetic child will inherit through the
genetic parent so long as the genetic child is conceived during the
lifetime of the intestate decedent, is born alive and survives 120
hours (EPTL 2-1.6).

ii. In instruments.

Proposed EPTL 44.3(f) parallels EPTL 2-1.3(c), which deals with rights
of nonmarital children under the instruments of persons other than the
parents of the children. It provides that if the genetic child is
entitled to inherit from the genetic parent under proposed EPTL 4-1.3,
the genetic child is a child of the genetic parent for purposes of
gifts in instruments to children, issue, descendants and similar
classes in instruments, whether of the creator or of other persons.
Because this is a new provision, it is applicable only to wills of
persons dying on or after September 1, 2014 and to lifetime
instruments executed before that date but which on that date can be
revoked or amended by the creator and to all lifetime instruments
executed on or after that date.

C. Examples

The following examples illustrate the workings of proposed EPTL
4-1.3(b) and (f). They all start with the paradigmatic situation -
husband deposits sperm for use by wife should he not survive a life
threatening illness or, where he survives treatment, should he there
upon become totally infertile. All the examples assume that the
requirements of proposed EPTL 4-1.3(b) have been fulfilled, wife gives
birth to a child conceived with husband's sperm within the required
time period, and that child is therefore the child of husband.


Example 1: Husband dies intestate. Child is a distributee of husband
who is the child's father because proposed EPTL 4-1.3(b) overrides
EPTL 4-1.1(c).

Example 2: Husband dies testate. The will is duly admitted to probate
and makes a disposition to "my issue" or "my children." Child is a
beneficiary of the disposition because proposed EPTL 4-1.3(b) also
overrides EPTL 24.3(a)(2).

Example 3: Shortly after husband's death, husband's mother (mother)
dies intestate survived by her spouse and issue. Child is a
distributee of husband's mother only if child is living at mother's
death (or is en ventre so mere and is then born alive and survives for
120 hours) because under EPTL 4-1.1(c) all of mother's distributees
must at least be conceived before her death.

Example 4: Shortly after husband's death, mother dies testate and her
will, duly admitted to probate, includes a general disposition of
$10,000 "to each of my grandchildren living at my death." Child
participates in the gift only if child is living at mother's death (or
is en ventre sa mere and is then born alive and survives for 120
hours).

Example 5: At mother's death, the testamentary QTIP trust created by
husband's father (father) terminates and the trust terms direct the
trustee to distribute the trust property to father's "issue, then
living, free of trust." Child is a remainder beneficiary of the trust
only if child is living at mother's death (or is en venire so mere and
is then born alive and survives for 120 hours) because under EPTL
2-1.3 a member of the class of "issue" must be alive when the
disposition becomes effective or at least have been conceived before
and born alive after the disposition becomes effective.

Example 6: Husband is the creator a revocable trust which on his death
divides into two trusts: Trust 1, to pay income to wife for life and,
at her death, to terminate with the trust property to be distributed
free of trust to husband's issue by representation; and Trust 2, to
pay income to husband's issue until the youngest is 30 years of age at
which time the trust terminates and the trust property is to be
distributed to husband's issue by representation. Child is a
contingent remainder beneficiary of Trust 1, and a present beneficiary
and contingent remainder beneficiary of Trust 2. Child is a child of
husband under proposed EPTL 4-1.3(b), which overrides the provisions
of EPTL 2-1.3(a)(2) which would otherwise prevent child from being a
beneficiary because child was conceived after the dispositions became
effective at husband's death and thus would not be a child of husband
under that provision.

Example 7: In any of the above examples, if the genetic child had been
in utero or born outside of the time limit in proposed EPTL 4-1.3, the
genetic child would not be a distributee of the genetic parent nor
would he or she be included in any of the classes involved in the
examples, even if conceived or born before the class closed.{1}

3. The required writing


Proposed EPTL 4-1.3(c) sets forth the requirements for the writing
specified in proposed 4-1.3(b)(1). The writing must be signed by the
genetic parent in the presence of two witnesses at least eighteen
years of age, neither of whom is a person authorized to make decisions
about the use of the genetic parent's genetic material. The instrument
must be signed and witnessed not more than seven years before the
genetic parent's death. The instrument can be revoked only by a
written instrument signed by the genetic parent and executed in the
same manner as the instrument it revokes. It may not be altered or
revoked by the will of the genetic parent. It may authorize an
alternate to make decisions if the first person designated dies before
the genetic parent or is unable to exercise the authority granted
under the instrument.

Proposed EPTL 4-1.3(c)(5) sets forth a model instrument

4. Other provisions

Proposed EPTL 4-1.3(d) revokes the authority given under the written
instrument to the genetic parent's spouse should the marriage end in
divorce, annulment, or a judgment or order of legal separation is
entered against the spouse. (This is the same standard applicable to
revocation of dispositions to and beneficiary designations of an
ex-spouse under EPTL 5-1.4(0(2).)

In order to prevent undue difficulties in opening administration of
the genetic parent's estate, proposed EPTL 4-1.3(e) modifies SCPA 1003
and 1403 by requiring that process shall not issue to a genetic child
unless the child is in being at the time process issues. In other
words, the possibility of the existence of a genetic child of a
decedent will not delay the issuing of letters to the decedent's
personal representative.

Proposed EPTL 4-1.3(g) provides that a genetic child entitled to
inherit from a genetic parent under proposed EPTL 4-1.3(b) is included
in the terms "issue," "surviving issue" and "issue surviving" as used
in EPTL 3-3.3, the anti-lapse statute. A genetic child would therefore
take a share of a lapsed gift on the same basis as the birth, adopted,
or nonmarital issue of the person to whom a testamentary disposition
is made but who dies before the testator and to which EPTL 3-3.3
applies.

Proposed EPTL 4-1.3(h) removes the possibility of the birth of a
genetic child from determinations of validity of a disposition under
the rule against perpetuities (EPTL 9-1.1). The exclusion of genetic
children from such determinations mirrors the exclusion of the
possibility of adoption in EPTL 9-1.3(e)(3).

Genetic material cannot be the subject of a disposition in any
instrument. In Kass v. Kass, 91 N.Y.2d 554, 696 N.E.2d 174, 673
N.Y.S.2d 350 (1998), a unanimous Court of Appeals held that the
disposition of pre-embryos created by a husband and wife on the
couple's divorce was governed by the contracts between the fertility
clinic and the couple. The court put great weight on the freely made
choices of the parties and clearly did not equate the pre-embryos with
"property" subject to disposition on divorce. In the case of preserved
genetic material, proposed EPTL 4-1.3 provides a comprehensive scheme


under which the depositor of the material can express his or her
desires with regard to the use of such material for posthumous
reproduction. In light of Kass, it is reasonable that proposed EPTL
4-1.3 and the agreement freely made between the depositor and the
depository govern the use of the genetic material, to the exclusion of
other agreements including the depositor's will.

Because distribution of the genetic parent's estate may be delayed by
the possibility of the birth of a genetic child, this measure amends
EPTL 11-1.5 to deal with that possibility. Paragraph (a) states that
the personal representative need not pay, a testamentary disposition
or distributive share before completion of the publication of notice
to creditors or if no notice is published, before the expiration of
seven months from the time of letters were granted. The measure amends
the statute to add to these two events the birth of a genetic child of
the decedent who is entitled to inherit under proposed EPTL 4-1.3, so
long as notice of the availability of the decedent's genetic material
has been given under the statute.  Paragraph.(b) is amended to allow
the personal representative to require a bond whenever the will
directs a disposition to be paid before the birth of a child entitled
to inherit under proposed EPTL 4-1.3 and paragraph (c) is amended to
allow the personal representative to refuse a demand to pay before the
birth of a child entitled to inherit under proposed EPTL 4-1.3.
Finally, paragraph (d) directs that interest be paid at the statutory
6% rate commencing at the later of the expiration of seven months from
the grant of letters or the birth of a child entitled to inherit under
proposed EPTL 4-1.3. Because the rule of paragraph (a), which as
amended allows the personal representative to delay distribution until
the birth of the posthumously conceived child of the decedent is
subject to "court decree or order," the rule can be modified by the
court under appropriate circumstances.

This measure would have no fiscal impact on State or local government.
It would take effect immediately and apply to the estates of decedents
dying on or after that date, provided, however, that the provisions of
paragraph (f) of proposed EPTL 4-1.3, as added by section 1 of this
act, would 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.

2013 Legislative History:  S. 4779-A (Senator Bonacic) (ref to
Judiciary) A. 7461 (M. of A. Cook, Weinstein) (ord to 3rd Rdg, Cal.
365)

{1} Under proposed ETPL 4-1.3, neither of the posthumously conceived
children whose status as beneficiaries of trusts created by their
genetic father's father was confirmed in Matter of Martin B, 17
Misc.3d 198, 841 N.Y,S.2d 207 (Sur. Ct. New York Co. 2007) would be
children of their genetic father or issue of his father because they
were conceived and born well outside of the applicable time limits.
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A07461 Text:

                           S T A T E   O F   N E W   Y O R K
       ________________________________________________________________________

                                        7461--A
                                                               Cal. No. 365

                              2013-2014 Regular Sessions

                                 I N  A S S E M B L Y

                                     May 21, 2013
                                      ___________

       Introduced  by  M. of A. COOK, WEINSTEIN -- (at request of the Office of
         Court Administration) -- read once and referred to  the  Committee  on
         Judiciary  --  advanced  to  a  third  reading,  amended  and  ordered
         reprinted, retaining its place on the order of third reading

       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
   20  PARENT OF THE GENETIC CHILD WAS THE  CREATOR  AS  THE  ISSUE,  CHILDREN,
   21  DESCENDANTS,  HEIRS,  HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR BY ANY
   22  TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT:

        EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                             [ ] is old law to be omitted.
                                                                  LBD10087-05-4
       A. 7461--A                          2

    1    (1) THE GENETIC PARENT IN A WRITTEN INSTRUMENT  EXECUTED  PURSUANT  TO
    2  THE  PROVISIONS  OF  THIS  SECTION  NOT MORE THAN SEVEN YEARS BEFORE THE
    3  DEATH OF THE GENETIC PARENT:
    4    (A)  EXPRESSLY  CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO
    5  POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND
    6    (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC
    7  PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT;
    8    (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
    9  ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN
   10  NOTICE, BY CERTIFIED MAIL, RETURN  RECEIPT  REQUESTED,  OR  BY  PERSONAL
   11  DELIVERY,  THAT  THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR
   12  THE PURPOSE OF CONCEIVING A GENETIC CHILD OF  THE  GENETIC  PARENT,  AND
   13  SUCH WRITTEN NOTICE WAS GIVEN;
   14    (A)  WITHIN  SEVEN  MONTHS  FROM  THE  DATE OF THE ISSUANCE OF LETTERS
   15  TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE  GENETIC  PARENT,
   16  AS  THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR,
   17  IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE  DEATH  OF  THE
   18  GENETIC PARENT, AND
   19    (B)  WITHIN  SEVEN  MONTHS  OF  THE  DEATH  OF THE GENETIC PARENT TO A
   20  DISTRIBUTEE OF THE GENETIC PARENT;
   21    (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE  DECISIONS
   22  ABOUT  THE  USE  OF  THE  GENETIC PARENT'S GENETIC MATERIAL RECORDED THE
   23  WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH  IN
   24  THE  OFFICE  OF  THE  SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S
   25  ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE  OF  THE
   26  SURROGATE HAVING JURISDICTION TO GRANT THEM; AND
   27    (4)  THE  GENETIC  CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS
   28  AFTER THE GENETIC PARENT'S DEATH OR  BORN  NO  LATER  THAN  THIRTY-THREE
   29  MONTHS AFTER THE GENETIC PARENT'S DEATH.
   30    (C)  THE  WRITTEN  INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA-
   31  GRAPH (B) OF THIS SECTION:
   32    (1) MUST BE SIGNED BY THE  GENETIC  PARENT  IN  THE  PRESENCE  OF  TWO
   33  WITNESSES  WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH-
   34  TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED  UNDER  THE
   35  INSTRUMENT  TO  MAKE  DECISIONS  ABOUT  THE  USE OF THE GENETIC PARENT'S
   36  GENETIC MATERIAL;
   37    (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE  GENETIC
   38  PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES;
   39    (3)  MAY  NOT  BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE
   40  GENETIC PARENT;
   41    (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF  THE
   42  GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES
   43  BEFORE  THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT-
   44  ED; AND
   45    (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED  AND
   46  DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED:

   47  I, ____________________________________________________________________,
   48                           (YOUR NAME AND ADDRESS)
   49  CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET-
   50  IC  MATERIAL")  TO  CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH,
   51  AND I AUTHORIZE

       ________________________________________________________________________
   52                        (NAME AND ADDRESS OF PERSON)
       A. 7461--A                          3

    1  TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO  CONCEIVE
    2  A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
    3  IN  THE  EVENT  THAT  THE  PERSON  AUTHORIZED ABOVE DIES BEFORE ME OR IS
    4  UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE

       ________________________________________________________________________
    5                        (NAME AND ADDRESS OF PERSON)
    6  TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO  CONCEIVE
    7  A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
    8  I  UNDERSTAND  THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION IN A
    9  WRITTEN DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO  ALSO
   10  SIGN  THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN EFFECT
   11  FOR SEVEN YEARS FROM THIS DAY AND THAT I CANNOT REVOKE  OR  MODIFY  THIS
   12  CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL.

   13  SIGNED THIS       DAY OF         ,

   14  _____________________________________________
   15  (YOUR SIGNATURE)
   16  STATEMENT OF WITNESSES:
   17  I  DECLARE  THAT THE PERSON WHO SIGNED THIS DOCUMENT IS PERSONALLY KNOWN
   18  TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM
   19  DURESS. HE OR SHE SIGNED THIS DOCUMENT IN MY  PRESENCE.  I  AM  NOT  THE
   20  PERSON  AUTHORIZED  IN  THIS  DOCUMENT TO CONTROL THE USE OF THE GENETIC
   21  MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
   22  WITNESS:
   23  ADDRESS:
   24  DATE:
   25  WITNESS:
   26  ADDRESS:
   27  DATE:
   28    (D) ANY AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED  BY  THIS
   29  SECTION  TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE TIME
   30  OF EXECUTION OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL  DECREE  OR
   31  JUDGMENT  OF  DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT OR ORDER
   32  DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE
   33  SPOUSE OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE,  RECOGNIZED
   34  AS  VALID  UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR JUDGMENT OF
   35  SEPARATION, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE,  WHICH  WAS
   36  RENDERED AGAINST THE SPOUSE.
   37    (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF
   38  A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR
   39  HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS
   40  IN BEING AT THE TIME PROCESS ISSUES.
   41    (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO
   42  ANY  DISPOSITION  OF  PROPERTY  IN  ANY  INSTRUMENT OF WHICH THE GENETIC
   43  PARENT OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION  2-1.3
   44  OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET-
   45  IC  PARENT  UNDER  THIS  SECTION  IS  A  CHILD OF THE GENETIC PARENT FOR
   46  PURPOSES OF A DISPOSITION  OF  PROPERTY  TO  PERSONS  DESCRIBED  IN  ANY
   47  INSTRUMENT  AS  THE  ISSUE,  CHILDREN, DESCENDANTS, HEIRS, HEIRS AT LAW,
   48  NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR
   49  OR OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS  DYING
   50  ON  OR AFTER SEPTEMBER FIRST, TWO THOUSAND FOURTEEN, TO LIFETIME INSTRU-
   51  MENTS THERETOFORE EXECUTED  WHICH  ON  SAID  DATE  ARE  SUBJECT  TO  THE
       A. 7461--A                          4

    1  GRANTOR'S  POWER  TO  REVOKE  OR  AMEND, AND TO ALL LIFETIME INSTRUMENTS
    2  EXECUTED ON OR AFTER SUCH DATE.
    3    (G)  FOR  PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE",
    4  "SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR
    5  SHE IS ENTITLED TO INHERIT FROM HIS OR HER  GENETIC  PARENT  UNDER  THIS
    6  SECTION.
    7    (H)  WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE-
    8  TUITIES DEPENDS ON THE ABILITY OF A PERSON  TO  HAVE  A  CHILD  AT  SOME
    9  FUTURE  TIME,  THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD
   10  SHALL BE DISREGARDED. THIS PROVISION SHALL NOT  APPLY  FOR  ANY  PURPOSE
   11  OTHER  THAN  THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE
   12  RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY  OF
   13  A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI-
   14  TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY
   15  THE  APPLICATION  OF  THIS  PROVISION SHALL NOT BE AFFECTED BY THE LATER
   16  BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION.
   17    (I) THE USE OF A GENETIC  MATERIAL  AFTER  THE  DEATH  OF  THE  PERSON
   18  PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS
   19  SECTION  AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH
   20  PERSON AND THE FACILITY PROVIDING STORAGE OF THE  GENETIC  MATERIAL  AND
   21  MAY  NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE
   22  PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON.
   23    S 2. Paragraphs (a), (b),  (c)  and  (d)  of  section  11-1.5  of  the
   24  estates,  powers  and  trusts  law,  paragraph (a) and subparagraph 1 of
   25  paragraph (b) as amended, and such section as renumbered by chapter  686
   26  of  the laws of 1967, and paragraph (d) as amended by chapter 634 of the
   27  laws of 1985, are amended to read as follows:
   28    (a) Subject to his OR HER duty to  retain  sufficient  assets  to  pay
   29  administration  and  reasonable  funeral expenses, debts of the decedent
   30  and all taxes for which the estate is liable, a personal  representative
   31  may, but, except as directed by will or court decree or order, shall not
   32  be  required  to, pay any testamentary disposition or distributive share
   33  before the completion of the publication of notice to creditors  or,  if
   34  no  such notice is published, before the expiration of seven months from
   35  the time letters testamentary or of administration are granted,  OR,  IF
   36  NOTICE  OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN
   37  GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC  CHILD  WHO  IS
   38  ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3.
   39    (b)  Whenever  a disposition is directed by will to be paid in advance
   40  of such publication of notice or the  expiration  of  such  seven  month
   41  period  OR  THE  BIRTH  OF  A GENETIC CHILD ENTITLED TO INHERIT FROM THE
   42  DECEDENT UNDER SECTION 4-1.3, the personal representative may require  a
   43  bond, conditioned as follows:
   44    (1) That if debts of the decedent appear, and the assets of the estate
   45  are  insufficient  to pay them or to pay other testamentary dispositions
   46  entitled, under SECTION 13-1.3, to payment equally with or prior to that
   47  of the disposition paid in advance,  the  beneficiary  to  whom  advance
   48  payment  was  made  will  refund it, or the value thereof, together with
   49  interest thereon and any costs incurred by reason of  such  payment,  or
   50  such  ratable  portion  thereof, as is necessary to pay such debts or to
   51  satisfy the rights, if any, of other beneficiaries under the will.
   52    (2) That if the will, under which the disposition was paid, is  denied
   53  probate, on appeal or otherwise, such beneficiary will refund the entire
   54  advance  payment,  together  with  interest  and  costs  as described in
   55  subparagraph (1), to the personal representative entitled thereto.
       A. 7461--A                          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.
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