Delzer v. Berryhill, No. 16-56203 (9th Cir. 2018)
Annotate this CaseThe Ninth Circuit certified the following questions of state law to the California Supreme Court: California Probate Code 249.5 provides that, for probate purposes, "a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that," inter alia, "[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent." Cal. Prob. Code 249.5(a). Does a writing that specifies that some genetic material of the decedent shall be so used satisfy 249.5(a), regardless whether the genetic material specified in the putative writing includes the genetic material actually used to conceive the claimant child? Or must the genetic material identified in the putative writing include the genetic material actually used to conceive the claimant child?
Court Description: Certified Question to California Supreme Court. The panel certified the following questions of state law to the California Supreme Court: California Probate Code § 249.5 provides that, for probate purposes, “a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that,” inter alia, “[t]he decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent.” Cal. Prob. Code § 249.5(a). Does a writing that specifies that some genetic material of the decedent shall be so used satisfy § 249.5(a), regardless whether the genetic material specified in the putative writing includes the genetic material actually used to conceive the claimant child? Or must the genetic material identified in the putative writing include the genetic material actually used to conceive the claimant child?
The court issued a subsequent related opinion or order on May 15, 2018.
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