NY Est Pow & Trusts L § 4-1.3 (2021)
2021 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 an Intended Parent.

§ 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.