On Nov. 21, 2014, Governor Cuomo signed into law EPTL §41.3 and amendments to EPTL §111.5 to provide a statutory solution to inheritance rights of a posthumously conceived child in New York. New EPTL §41.3 introduces four requirements for a posthumous child, referred to in the statute as a “genetic child,” to inherit from the genetic parent in intestacy or under a will or trust.
First, the genetic parent storing the sperm or ova (a/k/a an egg cell) must expressly consent to the use of the genetic material for posthumous conception and authorize a person to make decisions about the use of the genetic material after his or her death. Such consent and authorization must be in a written instrument, which is executed not more than seven years before the death of the genetic parent. Second, notice of the existence of the genetic material must be provided by the authorized person to the personal representative of the estate within seven months of the issuance of letters. Third, the authorized person must record the written instrument within seven months of the genetic parent’s death with the Surrogate’s Court granting letters on the genetic parent’s estate. Finally, the genetic child must be in utero within 24 months of the genetic parent’s death or born no later than 33 months after the genetic parent’s death.
The statute provides further rules and requirements with respect to the writing and a sample form to be utilized by the genetic parent. The writing must be dated and signed by the genetic parent in the presence of two witnesses, neither of whom can be the authorized person under the document. Next, the genetic parent may revoke the written instrument by a new writing executed in the same manner as the written instrument it seeks to revoke. The statute specifically prohibits altering or revoking the written instrument through the will of the genetic parent. Also, if desired, the genetic parent may appoint an alternate authorized person within the writing. Finally, as with EPTL §51.4, any authority given to a spouse of the genetic parent is revoked by a divorce or annulment as such is defined under the statute.
If the above requirements are met, the genetic child will be entitled to inherit from the genetic parent as a distributee, should the genetic parent die intestate. Also, the genetic child will have inheritance rights under any trust or will that provides for a disposition of property to a class of beneficiaries that include the genetic child (i.e. the genetic parent’s issue, children, descendants, etc.). Importantly, the genetic child’s inheritance rights under the statute are not limited to an inheritance from the genetic parent. However, with respect to dispositive instruments in which the genetic parent is not the creator, the new law will be applicable only to wills of persons dying on or after Sept. 1, 2014, and to lifetime trusts executed on or after such date. For instruments created by the genetic parent, the new law is effective immediately.