NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
BILL NUMBER: A7461A
SPONSOR: Cook (MS) 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 Surro-
gate'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. Capato,_ U.S._ 132 S.Ct. 2021, 182 L.Ed.2d 88 (2012)). There is no
New York caselaw dealing with the question whether posthumously-con-
ceived 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 be eligible for Social Secu-
rity 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 compre-
hensive legislation to resolve the issues raised by advances in biotech-
nology." (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 a 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 materi-
al," for posthumous reproduction and authorizes a person to make deci-
sions 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 been issued, the
writing must be recorded in the office of the Surrogate having jurisdic-
tion 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 thir-
ty-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 earn-
ing 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 neces-
sary 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 para-
graph 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 enti-
tled 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 depos-
its 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 bene-
ficiary of the disposition because proposed EPTL 4-1.3(b) also overrides
EPTL 2-1.3(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 sa 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 partic-
ipates 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 ventre sa 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 of 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 distrib-
uted 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 distrib-
uted to husband's issue by representation. Child is a contingent remain-
der 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 spec-
ified 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 exer-
cise 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(f)(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 instru-
ment. 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 dispo-
sition 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 Judici-
ary) 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 genet-
ic 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.
