2019 New York Laws
EPT - Estates, Powers and Trusts
Article 4 - Descent and Distribution of an Intestate Estate
Part 1 - Rules Governing Intestate Succession
4-1.3 - Inheritance by Children Conceived After the Death of a Genetic Parent.
§ 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
paragraph (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
eighteen 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
granted; 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
"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: (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
genetic 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 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.
(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
perpetuities 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
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 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.
