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S04779 Text:

                           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.
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