N.Y. Estates, Powers & Trusts Law § 4-1.3: Inheritance by children conceived after the death of an intended

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

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

section to a person who is the spouse 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 section is a child 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.