Posthumously
Conceived
Children:
Fiduciary and Planning Issues
New York Bankers Association – 9/30-10/2/2015
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Speakers
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Nancy E. Klotz is Vice President and Senior Trust
Counsel with Tompkins Trust Company in
Rochester, NY, where she works with clients and
their advisors to develop and administer trust and
estate plans.
Anthony T. Selvaggio is an attorney with the firm
of Jill M. Cicero & Associates (Rochester, NY)
where he concentrates his practice in the areas of
wealth transfer planning, the drafting of Wills and
trusts, and representing individual and corporate
fiduciaries in the administration of estates and
trusts.
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ART & Prior Statutory Law
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Advances in assisted reproductive
technology
Use of assisted reproductive technology a
growing phenomenon (medical coverage
and employee benefits)
Prior statutory framework insufficient to handle
the new reality of posthumous conception
Split between statutory and case law
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EPTL 4-1.1(c) and EPTL 5-3.2
Matter of Martin B., 841 N.Y.S.2d 207 (N.Y. Sur. Ct.
2007)
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Matter of Martin B.
Trustee of seven trusts petitioned court for
advice and direction.
 Issue: Are the two children conceived and
born after death of their father (deceased
son of Grantor) issue and descendants of the
grantor for trust purposes?
 Ruling: Yes, they are issue for this purpose.
 Reasoning: Court relied on grantor’s intent
due to the lack of a sufficient statutory
framework.
 Result: Court implored the NYS legislature to
act.
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EPTL SECTION 4-1.3
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Definitions:
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Consent to Posthumous Use:
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Genetic Parent, Genetic Material and Genetic
Child
Require written instrument and authorized
representative
Written Instrument Requirements:
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Manner of Execution
Revocation
Alteration or Revocation by Will Prohibited
Provision for Successor Representative
Statute provides a sample form – see next slide
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SAMPLE FORM EPTL 4-1.3(c) 5
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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
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(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 AWRITTEN 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 AUTHORIZEDIN
THIS DOCUMENT TO CONTROL THE USE OF THE GENETIC MATERIAL OF THE PERSON WHO SIGNED THIS DOCUMENT.
WITNESS: _____________________________________________
ADDRESS: _____________________________________________
DATE: _______________________
WITNESS: _____________________________________________
ADDRESS: _____________________________________________
DATE: _______________________
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Notice, Filing & Time Limits
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Notice and filing requirements:
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Burden on authorized representative
Required to preserve the inheritance rights of genetic
child
Notice (EPTL 4-1.3(b)(2)): within seven months to the
personal representative of estate if letters testamentary
have been issued
Filing (EPTL 4-1.3(b)(3)): filed in Surrogate’s Court
granting letters within seven months of issuance of letters
Time limits:
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EPTL 4-1.3(b)(4) - the genetic child must be in utero no
later than 24 months after the genetic parent’s death or
actually born no later than 33 months after the genetic
parent’s death.
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Family Tree
 Family
tree :
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APPLICATION OF THE STATUTE
Fact Pattern for Illustrations:
Monica, a genetic parent, dies in February
2015. Monica is divorced from Chandler and has
twins, Jack and Erica, age 8. Although Monica had
not remarried since her divorce, she had been living
with Richard, and they had planned to have a child.
Monica’s Will leaves her residuary estate “to her
issue, in equal shares, per stirpes.” After Monica’s
death, Richard continues with their plan to have a
child. In June 2015, the implantation of Monica’s
genetic material is successful and results in the birth
of her third child, Harriet, in February 2016, just a
year after Monica’s death.
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Assumptions for Illustrations
For the purposes of the following illustrations, it is
assumed that all the requirements of EPTL 4-1.3
necessary to qualify Harriet as Monica’s genetic
child have been met. These include:
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Monica’s written consent to the use of her
genetic material and the appointment of
Richard as her authorized representative
Richard, as the authorized representative, has
fulfilled the necessary notice and filing
requirements
Harriet has been born within 33 months of
Monica’s death, the time limit set by the statute
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APPLICABILITY TO GENETIC PARENT
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Testate Estate:
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EPTL 2-1.3
EPTL 4-1.3(b)
Result: Harriet shares equally in Monica’s estate
with Jack and Erica
Intestate Estate:
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EPTL 4-1.1(c)
EPTL 4-1.3(b)
Result: Harriet qualifies as Monica’s distributee
and shares equally in Monica’s estate with Jack
and Erica
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APPLICABILITY TO OTHERS
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Others?: Non-genetic parents. Most likely parents or
grandparents of genetic parent.
Testate Estate:
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Additional facts:
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Assume that Monica’s mother, Judy, died in July 2015, just five
months after the death of Monica. Following Monica’s death,
Judy had updated her estate planning, signing her Will in April
2015. However, this was before she was told about Richard’s plan
to use Monica’s stored genetic material. Judy’s Will leaves her
entire estate in equal shares to her children and to the issue of
any predeceased child. The Will clearly denotes that distributions
to issue will pass per stirpes. Judy had two children, Ross and
Monica.
EPTL 2-1.3
EPTL 4-1.3(f)
Result: Harriet will inherit from Judy’s estate as her issue along
with Monica’s twins, Jack and Erica.
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APPLICABILITY TO OTHERS
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Intestate Estate:
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Additional facts:
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Monica dies in February 2015. Monica’s daughter Harriet
is posthumously conceived in June 2015 and born in
February 2016. However, this time Judy, Monica’s
mother, dies intestate in March 2015. Judy is survived by
her son, Ross, and Monica’s twins, Jack and Erica, but
Harriet is conceived and born after Judy’s death.
EPTL 4-1.3(b) overrides the restrictions of EPTL 4-1.1 only in
cases in which the genetic parent dies testate.
Result: Harriet will not inherit from her grandmother’s
intestate estate and only Monica’s twins, Jack and Erica,
will be included along with Ross as distributees.
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EPTL 4-1.3 & Trusts
Testamentary Trusts
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Additional facts:
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Monica’s father, Jack, died in 2012, several years before his wife, Judy. Jack’s
Will created a trust for Judy’s benefit that terminated on her death in July 2015 in
favor of his then living issue, per stirpes. His then living issue included his son, Ross,
Monica’s twins, Jack and Erica, and potentially, Harriet.
Will Harriet inherit? No, Harriet would be excluded from the definition of
issue and would not be a remainder beneficiary of Jack’s trust.
Why? EPTL 4-1.3(f) limits applicability to “the wills of persons dying on or
after September first, two thousand fourteen.” (date of death, not date
of execution)
Result: Most existing testamentary trusts (those created prior to effective
date) will not benefit posthumously conceived children.
What About Lifetime Trusts? EPTL 4-1.3(f) also applies to all lifetime
instruments executed prior to September 1, 2014, but which were still
subject to the grantor’s power to revoke and amend on such date and
to all lifetime instruments executed on or after such date.
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Accordingly, if Monica’s mother, Judy, had used a revocable living trust which
dated back to 1984, this would not change the result that Harriet would be
treated as Judy’s issue because the trust was subject to her power to revoke
and amend on and after September 1, 2014.
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EPTL 4-1.3 & Trusts
Generation Skipping Trusts:
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Additional facts:
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Assume in this case that Harriet’s grandmother, Judy, dies in
January 2015 and creates a trust for her children, Ross and
Monica, under her Will. The trust benefits both of Judy’s children
and terminates on the death of the last of them to die. On
termination, the trust distributes the remainder to Judy’s “then
living issue, per stirpes.” Assume Harriet’s mother, Monica, dies in
2018 and Harriet is subsequently born in 2019 from the preserved
genetic material. As in all the previous examples, the
requirements of EPTL 4-1.3 have been satisfied in order to qualify
Harriet as Monica’s genetic child. In 2048, Ross dies and the trust
terminates.
Will Harriet inherit? Yes, because Harriet is alive when the
class closes (2048), she is a beneficiary of the remainder of
this trust.
Concerns:
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Would Judy desire this result?
How would the Trustee know about Harriet?
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Conclusion: A BRAVE NEW
WORLD
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Potential pitfalls for attorneys, clients and
fiduciaries
Unanswered question – what application will
the statute have on beneficiary designations
and TOD designations?
Bottom line: This seemingly esoteric issue will
impact professionals in the trust, estate and
financial services industry. Given anticipated
advances in technology, this issue will only
grow in importance. It is a brave new world!