2023 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.