"x x x.
The Questions:
The potential practical difficulties are obvious and relate to determining who the beneficiaries are upon the death of the patient or soldier. How long must the estate be held open against the possibility that additional children will be born in future years? What if the deceased patient or soldier (who is now the posthumous parent) was a beneficiary under a will or trust created by someone else, perhaps a parent or grandparent, which requires a trust to be distributed to his descendants upon his death? How does the trustee know who his children are, and how long must the trustee wait? Technical issues arise associated with probate, in which all children of the decedent are required to receive notice. Probate law generally does not have an exception for after-conceived children. In every probate proceeding where the possibility of after-conceived children exists, must the court appoint a guardian ad litem for potential future children?
The list goes on.
To provide some useful guidance, a number of states, including California and New York, have enacted legislation that deals with some of these questions.
The Legislative Solution:
California
California enacted legislation in 2004 under which a decedent’s heirs may include posthumously conceived children who are in utero within two years of the issuance of the decedent’s death certificate (or the earlier entry of judgment determining the fact of the decedent’s death), if the decedent expressly authorizes the posthumous conception of a child in a signed and dated writing.
The person designated by the decedent to control the decedent’s genetic material must give notice of the existence of that material for reproductive use to the decedent’s personal representative for the purposes of administering the estate within four months after the issuance of the death certificate (or the earlier entry of judgment determining the fact of the decedent’s death).
If the personal representative receives notice or has actual knowledge within the four-month period that the decedent’s genetic material is available for purposes of posthumous conception, the personal representative may not make a distribution of the estate until two years after the decedent’s death, except in the following circumstances:
- The personal representative has written notice that the person designated by the decedent does not intend to use the material for the posthumous conception of a child of the decedent.
- The birth of a child of the decedent conceived after death will have no effect on the proposed distribution, payment of death benefits, determination of rights to property to be distributed on the decedent’s death, or the right of any person to make certain probate claims.
- A petition for early distribution has been filed.
New York
New York enacted a similar statute late last year. The law, effective Nov. 21, 2014, determines whether or not children of persons who died on or after Sept. 1, 2014, are deemed to be beneficiaries under wills or lifetime trusts (assuming the will or trust is silent on the issue). The new law applies to the genetic parent’s will or trust no matter when signed, but it will apply to inheritance under an instrument created by someone else (perhaps a grandparent) only if the instrument was signed (or became irrevocable) on or after Sept. 1, 2014.
Under the New York legislation, a child will be recognized for all inheritance purposes if several conditions are met:
- The donor (referred to as the genetic parent) of the genetic material (sperm or ova – embryos are not covered by this new law) must have signed a document within the last seven years of life that expressly authorizes the use of the genetic material for posthumous reproduction and that also designates a person to make decisions regarding use of the genetic material.
- The person designated in the instrument must give notice of his or her authority and the existence of the genetic material to the executor or administrator of the genetic parent’s estate within seven months after the executor or administrator is appointed.
- The same notice must be recorded in the Surrogate Court within seven months of death (which will almost certainly be prior to the deadline for delivering it to the executor or administrator, due to the inevitable delays in the probate or administration process).
- The child must be conceived within 24 months of death or born within 33 months after death.
Fortunately, the statute includes a model of the document it requires, which should be used whenever applicable. - x x x."
