This bill has been amended

Bill S4779A-2013

Relates to inheritance by children conceived after the death of a genetic parent

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

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  • Jan 8, 2014: REFERRED TO JUDICIARY
  • May 16, 2013: PRINT NUMBER 4779A
  • May 16, 2013: AMEND AND RECOMMIT TO JUDICIARY
  • Apr 23, 2013: REFERRED TO JUDICIARY

Memo

BILL NUMBER:S4779A         REVISED MEMO 01/27/2014

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. 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-conceived children are distributees of their deceased genetic parent, but because EPTL 4-1.1(c) states: "(d)istributees 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 4-1.3(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, 2013 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 thereupon 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 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 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 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 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.*

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.

*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.

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 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 preembryos 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)


Text

STATE OF NEW YORK ________________________________________________________________________ 4779--A 2013-2014 Regular Sessions IN SENATE 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: Section 1. The estates, powers and trusts law is amended by adding a new section 4-1.3 to read as follows: S 4-1.3 INHERITANCE BY CHILDREN CONCEIVED AFTER THE DEATH OF A GENETIC PARENT (A) WHEN USED IN THIS ARTICLE, UNLESS THE CONTEXT OR SUBJECT MATTER MANIFESTLY REQUIRES A DIFFERENT INTERPRETATION: (1) "GENETIC PARENT" SHALL MEAN A MAN WHO PROVIDES SPERM OR A WOMAN WHO PROVIDES OVA USED TO CONCEIVE A CHILD AFTER THE DEATH OF THE MAN OR WOMAN. (2) "GENETIC MATERIAL" SHALL MEAN SPERM OR OVA PROVIDED BY A GENETIC PARENT. (3) "GENETIC CHILD" SHALL MEAN A CHILD OF THE SPERM OR OVA PROVIDED BY A GENETIC PARENT, BUT ONLY IF AND WHEN SUCH CHILD IS BORN. (B) FOR PURPOSES OF THIS ARTICLE, A GENETIC CHILD IS THE CHILD OF HIS OR HER GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING PARAGRAPH (C) OF SECTION 4-1.1 OF THIS PART, IS A DISTRIBUTEE OF HIS OR HER GENETIC PARENT OR PARENTS AND, NOTWITHSTANDING SUBPARAGRAPH (2) OF PARAGRAPH (A) OF SECTION 2-1.3 OF THIS CHAPTER, IS INCLUDED IN ANY DISPOSITION OF PROPERTY TO PERSONS DESCRIBED IN ANY INSTRUMENT OF WHICH A GENETIC PARENT OF THE GENETIC CHILD WAS THE CREATOR AS THE ISSUE, CHILDREN,
DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR IF IT IS ESTABLISHED THAT: (1) THE GENETIC PARENT IN A WRITTEN INSTRUMENT EXECUTED PURSUANT TO THE PROVISIONS OF THIS SECTION NOT MORE THAN SEVEN YEARS BEFORE THE DEATH OF THE GENETIC PARENT: (A) EXPRESSLY CONSENTED TO THE USE OF HIS OR HER GENETIC MATERIAL TO POSTHUMOUSLY CONCEIVE HIS OR HER GENETIC CHILD, AND (B) AUTHORIZED A PERSON TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL AFTER THE DEATH OF THE GENETIC PARENT; (2) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL GAVE WRITTEN NOTICE, BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY PERSONAL DELIVERY, THAT THE GENETIC PARENT'S GENETIC MATERIAL WAS AVAILABLE FOR THE PURPOSE OF CONCEIVING A GENETIC CHILD OF THE GENETIC PARENT, AND SUCH WRITTEN NOTICE WAS GIVEN; (A) WITHIN SEVEN MONTHS FROM THE DATE OF THE ISSUANCE OF LETTERS TESTAMENTARY OR OF ADMINISTRATION ON THE ESTATE OF THE GENETIC PARENT, AS THE CASE MAY BE, TO THE PERSON TO WHOM SUCH LETTERS HAVE ISSUED, OR, IF NO LETTERS HAVE BEEN ISSUED WITHIN FOUR MONTHS OF THE DEATH OF THE GENETIC PARENT, AND (B) WITHIN SEVEN MONTHS OF THE DEATH OF THE GENETIC PARENT TO A DISTRIBUTEE OF THE GENETIC PARENT; (3) THE PERSON AUTHORIZED IN THE WRITTEN INSTRUMENT TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL RECORDED THE WRITTEN INSTRUMENT WITHIN SEVEN MONTHS OF THE GENETIC PARENT'S DEATH IN THE OFFICE OF THE SURROGATE GRANTING LETTERS ON THE GENETIC PARENT'S ESTATE, OR, IF NO SUCH LETTERS HAVE BEEN GRANTED, IN THE OFFICE OF THE SURROGATE HAVING JURISDICTION TO GRANT THEM; AND (4) THE GENETIC CHILD WAS IN UTERO NO LATER THAN TWENTY-FOUR MONTHS AFTER THE GENETIC PARENT'S DEATH OR BORN NO LATER THAN THIRTY-THREE MONTHS AFTER THE GENETIC PARENT'S DEATH. (C) THE WRITTEN INSTRUMENT REFERRED TO IN SUBPARAGRAPH (1) OF PARA- GRAPH (B) OF THIS SECTION: (1) MUST BE SIGNED BY THE GENETIC PARENT IN THE PRESENCE OF TWO WITNESSES WHO ALSO SIGN THE INSTRUMENT, BOTH OF WHOM ARE AT LEAST EIGH- TEEN YEARS OF AGE AND NEITHER OF WHOM IS A PERSON AUTHORIZED UNDER THE INSTRUMENT TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL; (2) MAY BE REVOKED ONLY BY A WRITTEN INSTRUMENT SIGNED BY THE GENETIC PARENT AND EXECUTED IN THE SAME MANNER AS THE INSTRUMENT IT REVOKES; (3) MAY NOT BE ALTERED OR REVOKED BY A PROVISION IN THE WILL OF THE GENETIC PARENT; (4) MAY AUTHORIZE AN ALTERNATE TO MAKE DECISIONS ABOUT THE USE OF THE GENETIC PARENT'S GENETIC MATERIAL IF THE FIRST PERSON SO DESIGNATED DIES BEFORE THE GENETIC PARENT OR IS UNABLE TO EXERCISE THE AUTHORITY GRANT- ED; AND (5) MAY BE SUBSTANTIALLY IN THE FOLLOWING FORM AND MUST BE SIGNED AND DATED BY THE GENETIC PARENT AND PROPERLY WITNESSED: I, _____________________________________________________________________, (YOUR NAME AND ADDRESS) CONSENT TO THE USE OF MY (SPERM OR OVA) (REFERRED TO BELOW AS MY "GENET- IC MATERIAL") TO CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH, AND I AUTHORIZE _________________________________________________________________________
(NAME AND ADDRESS OF PERSON) TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH. IN THE EVENT THAT THE PERSON AUTHORIZED ABOVE DIES BEFORE ME OR IS UNABLE TO EXERCISE THE AUTHORITY GRANTED I DESIGNATE _________________________________________________________________________ (NAME AND ADDRESS OF PERSON) TO DECIDE WHETHER AND HOW MY GENETIC MATERIAL IS TO BE USED TO CONCEIVE A CHILD OR CHILDREN OF MINE AFTER MY DEATH. I UNDERSTAND THAT, UNLESS I REVOKE THIS CONSENT AND AUTHORIZATION IN A WRITTEN DOCUMENT SIGNED BY ME IN THE PRESENCE OF TWO WITNESSES WHO ALSO SIGN THE DOCUMENT, THIS CONSENT AND AUTHORIZATION WILL REMAIN IN EFFECT FOR SEVEN YEARS FROM THIS DAY AND THAT I CANNOT REVOKE OR MODIFY THIS CONSENT AND DESIGNATION BY ANY PROVISION IN MY WILL. SIGNED THIS DAY OF , _____________________________________________ (YOUR SIGNATURE) STATEMENT OF WITNESSES: I DECLARE THAT THE PERSON WHO SIGNED THIS DOCUMENT IS PERSONALLY KNOWN TO ME AND APPEARS TO BE OF SOUND MIND AND ACTING WILLINGLY AND FREE FROM DURESS. HE OR SHE SIGNED THIS DOCUMENT IN MY PRESENCE. I AM NOT THE PERSON AUTHORIZED IN THIS DOCUMENT TO CONTROL THE USE OF THE GENETIC MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT. WITNESS: ADDRESS: DATE: WITNESS: ADDRESS: DATE: (D) ANY AUTHORITY GRANTED IN A WRITTEN INSTRUMENT AUTHORIZED BY THIS SECTION TO A PERSON WHO IS THE SPOUSE OF THE GENETIC PARENT AT THE TIME OF EXECUTION OF THE WRITTEN INSTRUMENT IS REVOKED BY A FINAL DECREE OR JUDGMENT OF DIVORCE OR ANNULMENT, OR A FINAL DECREE, JUDGMENT OR ORDER DECLARING THE NULLITY OF THE MARRIAGE BETWEEN THE GENETIC PARENT AND THE SPOUSE OR DISSOLVING SUCH MARRIAGE ON THE GROUND OF ABSENCE, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE, OR A FINAL DECREE OR JUDGMENT OF SEPARATION, RECOGNIZED AS VALID UNDER THE LAW OF THIS STATE, WHICH WAS RENDERED AGAINST THE SPOUSE. (E) PROCESS SHALL NOT ISSUE TO A GENETIC CHILD WHO IS A DISTRIBUTEE OF A GENETIC PARENT UNDER SECTIONS ONE THOUSAND THREE AND ONE THOUSAND FOUR HUNDRED THREE OF THE SURROGATE'S COURT PROCEDURE ACT UNLESS THE CHILD IS IN BEING AT THE TIME PROCESS ISSUES. (F) EXCEPT AS PROVIDED IN PARAGRAPH (B) OF THIS SECTION WITH REGARD TO ANY DISPOSITION OF PROPERTY IN ANY INSTRUMENT OF WHICH THE GENETIC PARENT OF A GENETIC CHILD IS THE CREATOR, FOR PURPOSES OF SECTION 2-1.3 OF THIS CHAPTER A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM A GENET- IC PARENT UNDER THIS SECTION IS A CHILD OF THE GENETIC PARENT FOR PURPOSES OF A DISPOSITION OF PROPERTY TO PERSONS DESCRIBED IN ANY INSTRUMENT AS THE ISSUE, CHILDREN, DESCENDANTS, HEIRS, HEIRS AT LAW, NEXT OF KIN, DISTRIBUTEES (OR BY ANY TERM OF LIKE IMPORT) OF THE CREATOR OR OF ANOTHER. THIS PARAGRAPH SHALL APPLY TO THE WILLS OF PERSONS DYING ON OR AFTER SEPTEMBER FIRST, TWO THOUSAND THIRTEEN, TO LIFETIME INSTRU- MENTS 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. (G) FOR PURPOSES OF SECTION 3-3.3 OF THIS CHAPTER THE TERMS "ISSUE", "SURVIVING ISSUE" AND "ISSUE SURVIVING" INCLUDE A GENETIC CHILD IF HE OR SHE IS ENTITLED TO INHERIT FROM HIS OR HER GENETIC PARENT UNDER THIS SECTION. (H) WHERE THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPE- TUITIES DEPENDS ON THE ABILITY OF A PERSON TO HAVE A CHILD AT SOME FUTURE TIME, THE POSSIBILITY THAT SUCH PERSON MAY HAVE A GENETIC CHILD SHALL BE DISREGARDED. THIS PROVISION SHALL NOT APPLY FOR ANY PURPOSE OTHER THAN THAT OF DETERMINING THE VALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES WHERE SUCH VALIDITY DEPENDS ON THE ABILITY OF A PERSON TO HAVE A CHILD AT SOME FUTURE TIME. A DETERMINATION OF VALIDI- TY OR INVALIDITY OF A DISPOSITION UNDER THE RULE AGAINST PERPETUITIES BY THE APPLICATION OF THIS PROVISION SHALL NOT BE AFFECTED BY THE LATER BIRTH OF A GENETIC CHILD DISREGARDED UNDER THIS PROVISION. (I) THE USE OF A GENETIC MATERIAL AFTER THE DEATH OF THE PERSON PROVIDING SUCH MATERIAL IS SUBJECT EXCLUSIVELY TO THE PROVISIONS OF THIS SECTION AND TO ANY VALID AND BINDING CONTRACTUAL AGREEMENT BETWEEN SUCH PERSON AND THE FACILITY PROVIDING STORAGE OF THE GENETIC MATERIAL AND MAY NOT BE THE SUBJECT OF A DISPOSITION IN AN INSTRUMENT CREATED BY THE PERSON PROVIDING SUCH MATERIAL OR BY ANY OTHER PERSON. S 2. Paragraphs (a), (b), (c) and (d) of section 11-1.5 of the estates, powers and trusts law, paragraph (a) and subparagraph 1 of paragraph (b) as amended, and such section as renumbered by chapter 686 of the laws of 1967, and paragraph (d) as amended by chapter 634 of the laws of 1985, are amended to read as follows: (a) Subject to his OR HER duty to retain sufficient assets to pay administration and reasonable funeral expenses, debts of the decedent and all taxes for which the estate is liable, a personal representative may, but, except as directed by will or court decree or order, shall not be required to, pay any testamentary disposition or distributive share before the completion of the publication of notice to creditors or, if no such notice is published, before the expiration of seven months from the time letters testamentary or of administration are granted, OR, IF NOTICE OF THE AVAILABILITY OF GENETIC MATERIAL OF THE DECEDENT HAS BEEN GIVEN UNDER SECTION 4-1.3, BEFORE THE BIRTH OF A GENETIC CHILD WHO IS ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3. (b) Whenever a disposition is directed by will to be paid in advance of such publication of notice or the expiration of such seven month period OR THE BIRTH OF A GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3, the personal representative may require a bond, conditioned as follows: (1) That if debts of the decedent appear, and the assets of the estate are insufficient to pay them or to pay other testamentary dispositions entitled, under SECTION 13-1.3, to payment equally with or prior to that of the disposition paid in advance, the beneficiary to whom advance payment was made will refund it, or the value thereof, together with interest thereon and any costs incurred by reason of such payment, or such ratable portion thereof, as is necessary to pay such debts or to satisfy the rights, if any, of other beneficiaries under the will. (2) That if the will, under which the disposition was paid, is denied probate, on appeal or otherwise, such beneficiary will refund the entire advance payment, together with interest and costs as described in subparagraph (1), to the personal representative entitled thereto.
(c) If, after the [publication of notice to creditors or the] expira- tion of seven months from the time letters are granted OR THE BIRTH OF A GENETIC CHILD ENTITLED TO INHERIT FROM THE DECEDENT UNDER SECTION 4-1.3, as the case may be, the personal representative refuses upon demand to pay a disposition or distributive share, the person entitled thereto may maintain an appropriate action or proceeding against such represen- tative. But, for the purpose of computing the time limited for its commencement, the cause of action does not accrue until the personal representative's account is judicially settled. (d) In any action or proceeding to compel payment of a disposition or distributive share, the interest thereon, if any, shall, in the case of a disposition, be at the rate fixed in the will or, if none is so fixed, in any case at the rate of six percent per annum commencing THE LATER OF, seven months from the time letters, including preliminary or tempo- rary letters, are granted OR THE BIRTH OF A GENETIC CHILD OF THE DECE- DENT ENTITLED TO INHERIT UNDER SECTION 4-1.3. S 3. This act shall take effect immediately and shall apply to estates of decedents dying on or after such date; provided, however, that the provisions of paragraph (f) of section 4-1.3 of the estates, powers and trusts law, as added by section one of this act, shall apply to the wills of persons dying on or after September 1, 2013, 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.

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