Monday, March 16, 2015

Inheritance Status of Posthumously Conceived Children

On November 21, 2014, New York Governor Cuomo signed into law a new statute, EPTL 4-1.3, which addresses the inheritance rights of children conceived after the death of one parent.  The children generally show up because a parent had frozen his semen or her eggs, maybe because the parent is terminally ill, going off to combat, or a workaholic at a law firm.

Under the new law, a child conceived after the death of a parent may inherit from that parent (or relatives of that parent and other people) if four requirements are met:

1. The parent storing the sperm or egg must expressly authorize the use of that genetic material for posthumous conception, and the written authorization of someone else to make that decision must be updated at least every seven years.  The written authorization needs two witnesses in addition to the authorized decision-maker.  (Though not stated in the statute, the stored genetic material should probably also be updated at least every seven years.)

2. The written authorization must be recorded with the Surrogate's Court [no pun intended] within seven months of the storing parent's death.

3. The future child must be in utero within 24 months of the storing parent's death or born within 33 months of the storing parent's death. 

4. Notice of the existence of the genetic material must be provided to a decedent's estate within seven months of the death.  The decedent does not necessarily have to be the storing parent; for example, a grandparent might die with bequests to her grandchildren, and her estate must be notified that there might be some grandchildren chilling at the sperm bank.

If the above requirements are met, the posthumously conceived child is treated like any other child of the storing parent.  The new legislation applies immediately to the wills of a storing parent.  But since other relatives might be surprised and not necessarily in favor of giving to posthumously conceived children, the new legislation only applies to trusts executed after September 1, 2014 and to wills of people who died after that date. 

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