§ 4-1.3 Inheritance by children conceived after the death of an intended

Ask a will, trust or estate question, get an answer ASAP!
Thousands of highly rated, verified estate & trust lawyers.
Click here to chat with a lawyer about your rights.

parent

(a) When used in this article, unless the context or subject matter manifestly requires a different interpretation:

(1) "Genetic material" shall mean sperm or ova provided by a genetic parent.

(2) "Child" shall mean a child conceived through assisted reproduction.

(3) "Intended parent" shall have the same meaning as defined in section 581-102 of the family court act.

(b) For purposes of this article, a genetic child is the child of his or her intended parent or parents and, notwithstanding paragraph (c) of section 4-1.1 of this part, is a distributee of his or her intended 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 an intended 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 intended parent in a written instrument executed pursuant to the provisions of this section not more than seven years before the death of the intended parent expressly consented that if assisted reproduction were to occur after the death of the intended parent, the deceased individual would be a parent of the child; and

(2) the child was in utero no later than twenty-four months after the intended parent's death or born no later than thirty-three months after the intended parent's death.

(c) If the child was conceived using the genetic material of the intended parent, it must further be established that:

(1) the intended parent in a written instrument executed pursuant to the provisions of this section not more than seven years before the death of the intended parent authorized a person to make decisions about the use of the intended parent's genetic material after the death of the intended parent;

(2) the person authorized in the written instrument to make decisions about the use of the intended parent's genetic material gave written notice, by certified mail, return receipt requested, or by personal delivery, that the intended parent's genetic material was available for the purpose of conceiving a child of the intended 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 intended 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 intended parent, and

(B) within seven months of the death of the intended parent to a distributee of the intended parent; and

(3) the person authorized in the written instrument to make decisions about the use of the intended parent's genetic material recorded the written instrument within seven months of the intended parent's death in the office of the surrogate granting letters on the intended parent's estate, or, if no such letters have been granted, in the office of the surrogate having jurisdiction to grant them.

(d) The written instrument referred to in subparagraph (1) of paragraph (b) of this section and subparagraph (1) of paragraph (c) of this section:

(1) must be signed by the intended parent in the presence of two witnesses who also sign the instrument referred to in subparagraph (1) of paragraph (c) of this section, both of whom are at least eighteen years of age and neither of whom is a person authorized under the instrument to make decisions about the use of the intended parent's genetic material;

(2) may be revoked only by a written instrument signed by the intended 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 intended parent;

(4) an instrument referred to in subparagraph (1) of paragraph (c) of this section may authorize an alternate to make decisions about the use of the intended parent's genetic material if the first person so designated dies before the intended parent or is unable to exercise the authority granted;

(5) an instrument referred to in subparagraph (1) of paragraph (b) of this section may be substantially in the following form and must be signed and dated by the intended parent and properly witnessed: I, ____________________________________________________________________,

(Your name and address) consent to the use of assisted reproduction 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:

(6) may be substantially in the following form and must be signed and dated by the intended parent and properly witnessed: I, ____________________________________________________________________,

(Your name and address) consent to the use of my (sperm or ova) (referred to below as my "genetic 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:

(e) Any authority granted in a written instrument authorized by this § of the intended 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 intended 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.

(f) Process shall not issue to a child who is a distributee of an intended 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.

(g) Except as provided in paragraph (b) of this section with regard to any disposition of property in any instrument of which the intended parent of a child is the creator, for purposes of section 2-1.3 of this chapter a child who is entitled to inherit from an intended parent under this § of the intended 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 fourteen, 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.

(h) For purposes of section 3-3.3 of this chapter the terms "issue", "surviving issue" and "issue surviving" include a child if he or she is entitled to inherit from his or her intended parent under this section.

(i) Where the validity of a disposition under the rule against perpetuities depends on the ability of a person to have a child at some future time, the possibility that such person may have a child conceived using assisted reproduction 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 validity 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 child conceived using assisted reproduction disregarded under this provision.

(j) 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.