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

New York § 4-1.3

• Jurisdiction: New York
• Law EPT: Estates, Powers & Trusts
• Part 1: Rules Governing Intestate Succession
• Art. 4: Descent and Distribution of an Intestate Estate

Text

§ 4-1.3 Inheritance by children conceived after the death of an intended\n parent\n (a) When used in this article, unless the context or subject matter\nmanifestly requires a different interpretation:\n (1) "Genetic material" shall mean sperm or ova provided by a genetic\nparent.\n (2) "Child" shall mean a child conceived through assisted\nreproduction.\n (3) "Intended parent" shall have the same meaning as defined in\nsection 581-102 of the family court act.\n (b) For purposes of this article, a genetic child is the child of his\nor her intended parent or parents and, notwithstanding paragraph (c) of\nsection 4-1.1 of this part, is a distributee of his or her intended\nparent or parents and, notwithstanding subparagraph (2) of paragraph (a)\nof section 2-1.3 of this chapter, is included in any disposition of\nproperty to persons described in any instrument of which an intended\nparent of the genetic child was the creator as the issue, children,\ndescendants, heirs, heirs at law, next of kin, distributees (or by any\nterm of like import) of the creator if it is established that:\n (1) the intended parent in a written instrument executed pursuant to\nthe provisions of this section not more than seven years before the\ndeath of the intended parent expressly consented that if assisted\nreproduction were to occur after the death of the intended parent, the\ndeceased individual would be a parent of the child; and\n (2) the child was in utero no later than twenty-four months after the\nintended parent's death or born no later than thirty-three months after\nthe intended parent's death.\n (c) If the child was conceived using the genetic material of the\nintended parent, it must further be established that:\n (1) the intended parent in a written instrument executed pursuant to\nthe provisions of this section not more than seven years before the\ndeath of the intended parent authorized a person to make decisions about\nthe use of the intended parent's genetic material after the death of the\nintended parent;\n (2) the person authorized in the written instrument to make decisions\nabout the use of the intended parent's genetic material gave written\nnotice, by certified mail, return receipt requested, or by personal\ndelivery, that the intended parent's genetic material was available for\nthe purpose of conceiving a child of the intended parent, and such\nwritten notice was given;\n (A) within seven months from the date of the issuance of letters\ntestamentary or of administration on the estate of the intended parent,\nas the case may be, to the person to whom such letters have issued, or,\nif no letters have been issued within four months of the death of the\nintended parent, and\n (B) within seven months of the death of the intended parent to a\ndistributee of the intended parent; and\n (3) the person authorized in the written instrument to make decisions\nabout the use of the intended parent's genetic material recorded the\nwritten instrument within seven months of the intended parent's death in\nthe office of the surrogate granting letters on the intended parent's\nestate, or, if no such letters have been granted, in the office of the\nsurrogate having jurisdiction to grant them.\n (d) The written instrument referred to in subparagraph (1) of\nparagraph (b) of this section and subparagraph (1) of paragraph (c) of\nthis section:\n (1) must be signed by the intended parent in the presence of two\nwitnesses who also sign the instrument referred to in subparagraph (1)\nof paragraph (c) of this section, both of whom are at least eighteen\nyears of age and neither of whom is a person authorized under the\ninstrument to make decisions about the use of the intended parent's\ngenetic material;\n (2) may be revoked only by a written instrument signed by the intended\nparent and executed in the same manner as the instrument it revokes;\n (3) may not be altered or revoked by a provision in the will of the\nintended parent;\n (4) an instrument referred to in subparagraph (1) of paragraph (c) of\nthis section may authorize an alternate to make decisions about the use\nof the intended parent's genetic material if the first person so\ndesignated dies before the intended parent or is unable to exercise the\nauthority granted;\n (5) an instrument referred to in subparagraph (1) of paragraph (b) of\nthis section may be substantially in the following form and must be\nsigned and dated by the intended parent and properly witnessed:\nI, ____________________________________________________________________,\n (Your name and address)\nconsent to the use of assisted reproduction to conceive a child or\nchildren of mine after my death. I understand that, unless I revoke this\nconsent and authorization in a written document signed by me in the\npresence of two witnesses who also sign the document, this consent and\nauthorization will remain in effect for seven years from this day and\nthat I cannot revoke or modify this consent and designation by any\nprovision in my will.\nSigned this day of ,\n_____________________________________________\n(Your signature)\nStatement of witnesses:\nI declare that the person who signed this document is personally known\nto me and appears to be of sound mind and acting willingly and free from\nduress. He or she signed this document in my presence. I am not the\nperson authorized in this document to control the use of the genetic\nmaterial of the person who signed this document.\nWitness:\nAddress:\nDate:\nWitness:\nAddress:\nDate:\n (6) may be substantially in the following form and must be signed and\ndated by the intended parent and properly witnessed:\nI, ____________________________________________________________________,\n (Your name and address)\nconsent to the use of my (sperm or ova) (referred to below as my\n"genetic material") to conceive a child or children of mine after my\ndeath, and I authorize\n________________________________________________________________________\n (Name and address of person)\nto decide whether and how my genetic material is to be used to conceive\na child or children of mine after my death. In the event that the\nperson authorized above dies before me or is unable to exercise the\nauthority granted I designate\n________________________________________________________________________\n (Name and address of person)\nto decide whether and how my genetic material is to be used to conceive\na child or children of mine after my death. I understand that, unless I\nrevoke this consent and authorization in a written document signed by me\nin the presence of two witnesses who also sign the document, this\nconsent and authorization will remain in effect for seven years from\nthis day and that I cannot revoke or modify this consent and designation\nby any provision in my will.\nSigned this day of ,\n_____________________________________________\n(Your signature)\nStatement of witnesses:\nI declare that the person who signed this document is personally known\nto me and appears to be of sound mind and acting willingly and free from\nduress. He or she signed this document in my presence. I am not the\nperson authorized in this document to control the use of the genetic\nmaterial of the person who signed this document.\nWitness:\nAddress:\nDate:\nWitness:\nAddress:\nDate:\n (e) Any authority granted in a written instrument authorized by this\nsection to a person who is the spouse of the intended parent at the time\nof execution of the written instrument is revoked by a final decree or\njudgment of divorce or annulment, or a final decree, judgment or order\ndeclaring the nullity of the marriage between the intended parent and\nthe spouse or dissolving such marriage on the ground of absence,\nrecognized as valid under the law of this state, or a final decree or\njudgment of separation, recognized as valid under the law of this state,\nwhich was rendered against the spouse.\n (f) Process shall not issue to a child who is a distributee of an\nintended parent under sections one thousand three and one thousand four\nhundred three of the surrogate's court procedure act unless the child is\nin being at the time process issues.\n (g) Except as provided in paragraph (b) of this section with regard to\nany disposition of property in any instrument of which the intended\nparent of a child is the creator, for purposes of section 2-1.3 of this\nchapter a child who is entitled to inherit from an intended parent under\nthis section is a child of the intended parent for purposes of a\ndisposition of property to persons described in any instrument as the\nissue, children, descendants, heirs, heirs at law, next of kin,\ndistributees (or by any term of like import) of the creator or of\nanother. This paragraph shall apply to the wills of persons dying on or\nafter September first, two thousand fourteen, to lifetime instruments\ntheretofore executed which on said date are subject to the grantor's\npower to revoke or amend, and to all lifetime instruments executed on or\nafter such date.\n (h) For purposes of section 3-3.3 of this chapter the terms "issue",\n"surviving issue" and "issue surviving" include a child if he or she is\nentitled to inherit from his or her intended parent under this section.\n (i) Where the validity of a disposition under the rule against\nperpetuities depends on the ability of a person to have a child at some\nfuture time, the possibility that such person may have a child conceived\nusing assisted reproduction shall be disregarded. This provision shall\nnot apply for any purpose other than that of determining the validity of\na disposition under the rule against perpetuities where such validity\ndepends on the ability of a person to have a child at some future time.\nA determination of validity or invalidity of a disposition under the\nrule against perpetuities by the application of this provision shall not\nbe affected by the later birth of a child conceived using assisted\nreproduction disregarded under this provision.\n (j) The use of a genetic material after the death of the person\nproviding such material is subject exclusively to the provisions of this\nsection and to any valid and binding contractual agreement between such\nperson and the facility providing storage of the genetic material and\nmay not be the subject of a disposition in an instrument created by the\nperson providing such material or by any other person.\n