November 24, 2014
Authored by: Stacie J. Rottenstreich and Karin Barkhorn
Advances in medical technology have made it possible for a child to be conceived after the death of one or both of his or her genetic parents with the use of stored sperm or ova. Recently, the New York State Legislature has sent a bill to Governor Coumo which clarifies when a child born after the death of his or her genetic parents, a so called posthumously conceived child, will be deemed a child of such parents for the purpose of inheritance and intestacy law. This issue may arise when a genetic parent who will ultimately have a posthumously conceived child dies without a Will or with a Will using the generic term child or issue. Does the posthumously conceived child take a share of his or her genetic parent’s estate?
The new bill provides a child would be considered a distributee (a taker in intestacy) of the genetic parent and a child of the genetic parent for purposes of class gifts in dispositive instruments, if the following conditions are met:
• The genetic parent, in a written instrument executed no more than seven years before his or her death:
• Expressly consents to the use of his or her genetic material to conceive a child after his or death;
• Authorizes a person to make decisions regarding the use of his or her genetic material after his or her death.
• The person authorized to make decisions regarding the use of the stored genetic materials gives notice to the personal representative of the genetic parent’s estate within seven months of the issuance of letters to such personal representative. If no personal representative has received letter within four months of death, the notice should be given to a distributee of the genetic parent within seven months of death,
• The person authorized to make decisions regarding the use of the stored genetic materials records the writing within seven months of the genetic parent’s death in the office of the Surrogate’s court who issued or had authority to issue letters testamentary or letters of administration with respect to the genetic parent’s estate (generally, the court in the county in which the genetic parent resides at his or her death),
• The genetic child is in utero within 24 months or born within 33 months of the genetic parent’s death.
For instruments created by the genetic parent, the law will apply regardless of date. With regard to dispositive instruments in which the genetic parent was not the creator (such as documents created by a grandparent), the provision is to be effective for wills of individuals dying after September 1, 2014, or lifetime trusts executed after that date.
The new bill is a huge step forward in having law meet science.