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A07461 Summary:

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A07461 Text:

 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         7461--A
                                                                Cal. No. 365
 
                               2013-2014 Regular Sessions
 
                   IN ASSEMBLY
 
                                      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  § 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    § 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    § 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.