S T A T E O F N E W Y O R K
________________________________________________________________________
4779--A
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
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,
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10087-03-3
S. 4779--A 2
1 DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR BY ANY
2 TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT:
3 (1) THE GENETIC PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO
4 THE PROVISIONS OF THIS SECTION NOT MORE THAN SEVEN YEARS BEFORE THE
5 DEATH OF THE GENETIC PARENT:
6 (A) EXPRESSLY CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO
7 POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND
8 (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC
9 PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT;
10 (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS
11 ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN
12 NOTICE, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL
13 DELIVERY, THAT THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR
14 THE PURPOSE OF CONCEIVING A GENETIC CHILD OF THE GENETIC PARENT, AND
15 SUCH WRITTEN NOTICE WAS GIVEN;
16 (A) WITHIN SEVEN MONTHS FROM THE DATE OF THE ISSUANCE OF LETTERS
17 TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE GENETIC PARENT,
18 AS THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR,
19 IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE DEATH OF THE
20 GENETIC PARENT, AND
21 (B) WITHIN SEVEN MONTHS OF THE DEATH OF THE GENETIC PARENT TO A
22 DISTRIBUTEE OF THE GENETIC PARENT;
23 (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS
24 ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL RECORDED THE
25 WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH IN
26 THE OFFICE OF THE SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S
27 ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE OF THE
28 SURROGATE HAVING JURISDICTION TO GRANT THEM; AND
29 (4) THE GENETIC CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS
30 AFTER THE GENETIC PARENT'S DEATH OR BORN NO LATER THAN THIRTY-THREE
31 MONTHS AFTER THE GENETIC PARENT'S DEATH.
32 (C) THE WRITTEN INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA-
33 GRAPH (B) OF THIS SECTION:
34 (1) MUST BE SIGNED BY THE GENETIC PARENT IN THE PRESENCE OF TWO
35 WITNESSES WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH-
36 TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED UNDER THE
37 INSTRUMENT TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S
38 GENETIC MATERIAL;
39 (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE GENETIC
40 PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES;
41 (3) MAY NOT BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE
42 GENETIC PARENT;
43 (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF THE
44 GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES
45 BEFORE THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT-
46 ED; AND
47 (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED AND
48 DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED:
49 I, _____________________________________________________________________,
50 (YOUR NAME AND ADDRESS)
51 CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET-
52 IC MATERIAL") TO CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH,
53 AND I AUTHORIZE
54 _________________________________________________________________________
S. 4779--A 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 _________________________________________________________________________
7 (NAME AND ADDRESS OF PERSON)
8 TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE
9 A CHILD OR CHILDREN OF MINE AFTER MY DEATH.
10 I UNDERSTAND THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION IN A
11 WRITTEN DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO ALSO
12 SIGN THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN EFFECT
13 FOR SEVEN YEARS FROM THIS DAY AND THAT I CANNOT REVOKE OR MODIFY THIS
14 CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL.
15 SIGNED THIS DAY OF ,
16 _____________________________________________
17 (YOUR SIGNATURE)
18 STATEMENT OF WITNESSES:
19 I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT IS PERSONALLY KNOWN
20 TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM
21 DURESS. HE OR SHE SIGNED THIS DOCUMENT IN MY PRESENCE. I AM NOT THE
22 PERSON AUTHORIZED IN THIS DOCUMENT TO CONTROL THE USE OF THE GENETIC
23 MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
24 WITNESS:
25 ADDRESS:
26 DATE:
27 WITNESS:
28 ADDRESS:
29 DATE:
30 (D) ANY AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED BY THIS
31 SECTION TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE TIME
32 OF EXECUTION OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL DECREE OR
33 JUDGMENT OF DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT OR ORDER
34 DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE
35 SPOUSE OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE, RECOGNIZED
36 AS VALID UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR JUDGMENT OF
37 SEPARATION, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE, WHICH WAS
38 RENDERED AGAINST THE SPOUSE.
39 (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF
40 A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR
41 HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS
42 IN BEING AT THE TIME PROCESS ISSUES.
43 (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO
44 ANY DISPOSITION OF PROPERTY IN ANY INSTRUMENT OF WHICH THE GENETIC
45 PARENT OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION 2-1.3
46 OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET-
47 IC PARENT UNDER THIS SECTION IS A CHILD OF THE GENETIC PARENT FOR
48 PURPOSES OF A DISPOSITION OF PROPERTY TO PERSONS DESCRIBED IN ANY
49 INSTRUMENT AS THE ISSUE, CHILDREN, DESCENDANTS, HEIRS, HEIRS AT LAW,
50 NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR
51 OR OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS DYING
52 ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND THIRTEEN, TO LIFETIME INSTRU-
53 MENTS THERETOFORE EXECUTED WHICH ON SAID DATE ARE SUBJECT TO THE
S. 4779--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.
S. 4779--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, 2013, 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.
