Back | WordPerfect Version | ASCII Version | PDF Version

D R A F T

FOR DISCUSSION ONLY

AMENDMENTS TO INTESTACY PROVISIONS OF THE UNIFORM PROBATE CODE

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

For Drafting Committee Meeting, February 23-25, 2007

WITH PARTIAL COMMENTS

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

The ideas and conclusions set forth in this draft, including the proposed statutory language and any comments or reporter’s notes, have not been passed upon by the National Conference of Commissioners on Uniform State Laws or the Drafting Committee. They do not necessarily reflect the views of the Conference and its Commissioners and the Drafting Committee and its Members and Reporters. Proposed statutory language may not be used to ascertain the intent or meaning of any promulgated final statutory proposal.

February 6, 2007

DRAFTING COMMITTEE TO AMEND INTESTACY PROVISIONS OF THE UNIFORM PROBATE CODE

The Committee appointed by and representing the National Conference of Commissioners on Uniform State Laws in drafting these amendments consists of the following individuals:

SHELDON F. KURTZ, The University of Iowa College of Law, 446 BLB, Iowa City, IA 52242, Chair

TURNEY P. BERRY, 2700 PNC Plaza, Louisville, KY 40202

CYNTHIA BOSCO, California Department of Developmental Services, 1600 9^th St., Room 240 MS 2-14, Sacramento, CA 95814

FRANK W. DAYKIN, 2180 Thomas Jefferson Dr., Reno, NV 89509

JOSEPH M. DONEGAN, 1100 Valley Brook Ave., P.O. Box 790, Lyndhurst, NJ 07071

DAVID M. ENGLISH, University of Missouri-Columbia, School of Law, Missouri Ave. & Conley Ave., Columbia, MO 65211

MATTHEW S. RAE, Jr., 520 S. Grand Ave., 7^th Floor, Los Angeles, CA 90071-2645

HARRY L. TINDALL, 1300 Post Oak Blvd., Suite 1550, Houston, TX 77056-3081

STEPHANIE J. WILLBANKS, Vermont Law School, P.O. Box 96, Chelsea St., South Royalton, VT 05068

LAWRENCE W. WAGGONER, University of Michigan Law School, 625 S. State St., Ann Arbor, MI 48109-1215, Reporter

EX OFFICIO

HOWARD J. SWIBEL, 120 S. Riverside Plaza, Suite 1200, Chicago, IL 60606, President

JACK DAVIES, 687 Woodridge Dr., Mendota Heights, MN 55118, Division Chair

AMERICAN BAR ASSOCIATION ADVISOR

LAURA M. TWOMEY, 666 Fifth Ave., New York, NY 10103-3198

EXECUTIVE DIRECTOR

JOHN A. SEBERT, 211 E. Ontario St., Suite 1300, Chicago, IL 60611

Copies of the Draft may be obtained from:

NATIONAL CONFERENCE OF COMMISSIONERS

ON UNIFORM STATE LAWS

211 E. Ontario Street, Suite 1300

Chicago, IL 60611

312-915-0195

www.nccusl.org

AMENDMENTS TO INTESTACY PROVISIONS OF THE UNIFORM PROBATE CODE

TABLE OF CONTENTS

SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE

SECTION 2-104. REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120

HOURS; AFTERBORN HEIRS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

SECTION 2-108. [RESERVED.] AFTERBORN HEIRS

SECTION 2-113. INDIVIDUALS RELATED TO DECEDENT THROUGH TWO LINES

NOT ENTITLED TO MORE THAN ONE SHARE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5

SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN CIRCUMSTANCES

SECTION 2-115. PARENT AND CHILD RELATIONSHIP; MARITAL AND

NONMARITAL CHILDREN

SECTION 2-116. PARENT AND CHILD RELATIONSHIP; ADOPTED INDIVIDUAL

SECTION 2-117. PARENT AND CHILD RELATIONSHIP; WHEN UNADOPTED STEPCHILD TREATED AS ADOPTED

SECTION 2-118. PARENT AND CHILD RELATIONSHIP; CHILD OF ASSISTED REPRODUCTION OTHER THAN A CHILD BORN TO A GESTATIONAL

MOTHER

SECTION 2-119. PARENT AND CHILD RELATIONSHIP; CHILD BORN TO A GESTATIONAL MOTHER

SECTION 2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH INTESTATE SUCCESSION

SECTION 3-916. DISTRIBUTION IN CASE OF POSTHUMOUS CONCEPTION

AMENDMENTS TO INTESTACY PROVISIONS

OF THE UNIFORM PROBATE CODE

* * *

SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE. Any part of the intestate estate not passing to the decedent’s surviving spouse under Section 2-102, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:

(1) to the decedent’s descendants by representation;

(2) if there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;

(3) if there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;

(4) if there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.;

(5) if there is no surviving spouse, descendant, parent, descendant of a parent, grandparent, or descendant of a grandparent, the following rules apply:

(A) if there is one deceased spouse, deceased former spouse, or surviving former spouse who has one or more surviving descendants, the entire intestate estate passes by representation to the deceased or former spouse’s descendants who survive the intestate decedent.

(B) if there is more than one deceased spouse, deceased former spouse, or surviving former spouse who has one or more surviving descendants, the entire intestate is divided into as many equal shares as there are such deceased and surviving former spouses, each share to be divided by representation among each such spouse’s descendants who survive the intestate decedent.

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “spouse.”

SECTION 2-104. REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120 HOURS; AFTERBORN HEIRS.

(a) An individual who was born before the decedent’s death but who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under Section 2-105.

(b) An individual who was in gestation at the decedent’s death is treated as living at the decedent’s death if the individual lives 120 hours after birth.

(c) This section applies for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly. If it is not established by clear and convincing evidence that (i) an individual who was born before the decedent’s death survived the decedent by 120 hours for purposes of subsection (a) or (ii) an individual who was in gestation at the decedent’s death lived 120 hours after birth for purposes of subsection (b), it is deemed that the individual failed to survive for the required period.

(d) This section is not to be applied if its application would result in a taking of intestate estate by the state under Section 2-105.

SECTION 2-108. [RESERVED.] AFTERBORN HEIRS. An individual in gestation at a particular time is treated as living at that time death if the individual lives 120 hours or more after birth.

Note to Drafting Committee:

Section 2-108 is not deleted, but has been moved to section 2-104(b).

SECTION 2-113. INDIVIDUALS RELATED TO DECEDENT THROUGH TWO LINES NOT ENTITLED TO MORE THAN ONE SHARE. An individual who is related to the decedent through two lines of relationship in such a manner as would entitle the individual to more than one share is entitled to only a single one share based on the relationship that would entitle the individual to the larger or largest share.

SECTION 2-114. PARENT AND CHILD RELATIONSHIP.

(a) Except as provided in subsections (b) and (c), for purposes of intestate succession by, through, or from a person, an individual is the child of his [or her] natural parents, regardless of their marital status. The parent and child relationship may be established under [the Uniform Parentage Act] [applicable state law] [insert appropriate statutory reference].

(b) An adopted individual is the child of his [or her] adopting parent or parents and not of his [or her] natural parents, but adoption of a child by the spouse of either natural parent has no effect on (i) the relationship between the child and that natural parent or (ii) the right of the child or a descendant of the child to inherit from or through the other natural parent.

(c) Inheritance from or through a child by either natural parent or his [or her] kindred is precluded unless that natural parent has openly treated the child as his [or hers], and has not refused to support the child.

SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN CIRCUMSTANCES. An individual whose parental rights have been terminated, or who has abandoned or failed to support his [or her] child, is barred from inheriting from or through the child. For purposes of intestate succession by, from, or through the deceased child, an individual who is barred from inheriting under this section is treated as if he [or she] predeceased the child.

Note from Reporter:

At the first drafting committee meeting, I was instructed to take a look at the following New York statute and proposed amendments thereto, and bring them to the attention of the committee. At the February 2007 drafting committee meeting, we will want to consider the extent to which we want to incorporate any of the NY statute into UPC 2-114.

New York Estates, Powers and Trusts Law § 4-1.4 Disqualification of parent to take intestate share

(a) No distributive share in the estate of a deceased child shall be allowed to a parent who has failed or refused to provide for, or has abandoned such child while such child is under the age of twenty-one years, whether or not such child dies before having attained the age of twenty-one years, unless the parental relationship and duties are subsequently resumed and continue until the death of the child. Subject to the provisions of subdivision eight of section two hundred thirteen of the civil practice law and rules, this paragraph shall not apply to a biological parent who places such child for adoption with a person or agency based upon: (1) a fraudulent promise, not kept, to arrange for and complete adoption of such child, or (2) other fraud or deceit by the person or agency where, before the death of the child, the person or agency fails to arrange for the adoptive placement or petition for the adoption of the child, and fails to comply timely with conditions imposed by the court for the adoption to proceed.

(b) In the event that a parent or spouse is disqualified from taking a distributive share in the estate of a decedent, under this section or 5-1.2, the estate of such decedent shall be distributed in accordance with 4-1.1 as though such spouse or parent had predeceased the decedent.

Proposed Amendments to NY EPTL 4-1.4:

<<+§ 4-1.4 Disqualification of parent to take intestate share+>> <<+(a) No distributive share in the estate of a deceased child shall be+>> <<+allowed to a parent if the parent, while such child is under the age of+>> <<+twenty-one years:+>>

<<+(1) has failed or refused to provide for the child or has abandoned+>> <<+such child, whether or not such child dies before having attained the+>> <<+age of twenty-one years, unless the parental relationship and duties are+>> <<+subsequently resumed and continue until the death of the child; or+>>

<<+(2) has been the subject of a proceeding pursuant to section three+>> <<+hundred eighty-four-b of the social services law which:+>>

<<+(A) resulted in an order terminating parental rights, or+>>

<<+(B) resulted in an order suspending judgment, in which event the+>> <<+surrogate's court shall make a determination disqualifying the parent on+>> <<+the grounds adjudicated by the family court, if the surrogate's court+>> <<+finds, by a preponderance of the evidence, that the parent, during the+>> <<+period of suspension, failed to comply with the family court order to+>> <<+restore the parent-child relationship.+>>

<<+(b) Subject to the provisions of subdivision eight of section two+>> <<+hundred thirteen of the civil practice law and rules, the provisions of+>> <<+subparagraph one of paragraph (a) of this section shall not apply to a+>> <<+biological parent who places the child for adoption based upon:+>>

<<+(1) a fraudulent promise, not kept, to arrange for and complete the+>> <<+adoption of such child, or+>>

<<+(2) other fraud or deceit by the person or agency where, before the+>> <<+death of the child, the person or agency fails to arrange for the adop-+>> <<+tive placement or petition for the adoption of the child, and fails to+>> <<+comply timely with conditions imposed by the court for the adoption to+>> <<+proceed.+>>

<<+(c) In the event that a parent or spouse is disqualified from taking a+>> <<+distributive share in the estate of a decedent under this section or+>> <<+5-1.2, the estate of such decedent shall be distributed in accordance+>> <<+with 4- 1.1 as though such spouse or parent had predeceased the decedent.+>>

§ 2. This act shall take effect on the first of January next succeeding the date on which it shall have become a law.

SECTION 2-115. PARENT AND CHILD RELATIONSHIP; MARITAL AND NONMARITAL CHILDREN.

(a) This section applies for purposes of determining the status of a marital or a nonmarital child under [this Part] [the laws of intestate succession].

(b) Except as provided in Sections 2-118 and 2-119 (relating to children of assisted reproduction), an individual is the child of his [or her] genetic parents, regardless of their marital status. The genetic parent and child relationship may be established under [Articles 1 through 6 of the Uniform Parentage Act] [applicable state law] [insert appropriate statutory reference].

Legislative Note: States that have enacted the Uniform Parentage Act should use the first bracketed language in the second sentence of subsection (b).

SECTION 2-116. PARENT AND CHILD RELATIONSHIP; ADOPTED INDIVIDUAL.

(a) This section applies for purposes of determining the status of an adopted individual under [this Part] [the laws of intestate succession].

(b) An adopted individual is the child of his [or her] adopting parent or parents.

(c) Except as provided in subsections (d) and (e), an adopted individual is not the child of his [or her] genetic parents.

(d) An individual who is adopted by the spouse of either genetic parent continues to be the child of:

(1) that genetic parent; and

(2) the other genetic parent, but only for purposes of intestate succession from or through that genetic parent.

(e) If the adoption occurs after the death or incapacity of either genetic parent:

(1) the child remains a child of both genetic parents if the adoption is by a relative of either genetic parent or the spouse or surviving spouse of such a relative;

(2) the child remains a child of both genetic parents if the adoption is by someone nominated by a genetic parent to be the child’s guardian, but only for purposes of intestate succession from or through either genetic parent; and

(3) the child remains a child of a genetic parent if the child does not subsequently become estranged from the genetic family of that genetic parent, but only for purposes of intestate succession from or through that genetic parent.

(f) If a child was adopted more than once, the term “genetic parent” in subsections (d) and (e) includes a “previous adoptive parent.”

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “spouse.”

SECTION 2-117. PARENT AND CHILD RELATIONSHIP; WHEN UNADOPTED STEPCHILD TREATED AS ADOPTED.

(a) This section applies for purposes of determining the status of an unadopted stepchild under [this Part] [the laws of intestate succession].

(b) A stepchild is treated as a child who has been adopted by his [or her] stepparent if:

(1) the relationship began during the child’s minority and continued throughout the lifetime of the stepparent; and

(2) it is established by clear and convincing evidence that the stepparent would, during the child’s minority, have adopted the child but for the refusal of the genetic parent to consent to the adoption or other legal barrier.

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “stepchild” and “stepparent.”

Harry Tindall’s Draft:

Section ___. Equitable Adoption

(a) When an individual is legally competent to adopt a child enters into a contract to adopt a child and there is consideration supporting the contract in the form of past performance falling short of undertaking or completing a statutory adoption, the contract may be enforced to the extent of allowing the child to occupy the status of a child formally adopted for purposes described in this section.

(b) Equitable adoption is for the benefit of the child and not the adult.

(d) Equitable adoption does not create a parent-child relationship and is exclusively an equitable remedy for the following matters:

(1) intestate succession or inclusion in a class gift or devise; and

(2) social security and other public assistance benefits.

Harry’s Comment

According to the ALR annotation, “Modern Status of Law as to Equitable Adoption or Adoption by Estoppel, 122 ALR 5^th 205 (2004), 29 states recognize equitable adoption and 15 do not recognize equitable adoption.

There are several issues in equitable adoption discussed in the above article not addressed in this draft. Wrongful death claims, child support, taxation, etc. To address all issues would make the statutory language to long and complicated.

SECTION 2-118. PARENT AND CHILD RELATIONSHIP; CHILD OF ASSISTED REPRODUCTION OTHER THAN A CHILD BORN TO A GESTATIONAL MOTHER.

(a) This section applies for purposes of intestate succession by, through, or from a child conceived by means of assisted reproduction by a woman other than a gestational mother.

(b) In this section:

(1) “assisted reproduction” means a method of causing pregnancy other than sexual intercourse. The term includes:

(A) intrauterine insemination;

(B) donation of eggs;

(D) in-vitro fertilization and transfer of embryos; and

(E) intracytoplasmic sperm injection.

(2) “Third-party Donor” means an individual who produces eggs or sperm used for assisted reproduction, whether or not for consideration. The term does not include:

(A) a husband who provides sperm, or a wife who provides eggs, to be used for assisted reproduction by the wife;

(B) a woman who gives birth to a child by means of assisted reproduction other than a gestational mother; or

(3) “functioned as the child’s parent” means performing functions that are customarily performed by a parent.

(d) Except as provided in subsections (e) and (f), a child who is conceived by means of assisted reproduction is a child of an individual who consented to be the child’s parent. Consent can be shown by:

(1) signing a record, before or after the child’s birth, expressing consent to be the child’s parent; or

(2) residing with the child in the same household and holding out the child as his [or her] own during the first two years of the child’s life; or

(3) behaving in a manner consistent with being the parent of the child or, if death or incapacity occurs before the birth of the child, planning to be the parent of the child.

If the child is born to a married woman and she and her husband are not separated and no divorce or annulment proceedings are pending, it is presumed that both spouses consented to be the child’s parent.

Note from Reporter:

We need to address posthumous conception.

(e) If a marriage is dissolved before placement of eggs, sperm, or embryos, the resulting child is not a child of the former spouse unless the former spouse consented in a record that if assisted reproduction were to occur after a dissolution of the marriage, the child would be the child of the former spouse.

(f) If, in a record, a man or a woman withdraws consent to assisted reproduction before placement of eggs, sperm, or embryos, the resulting child is not a child of that individual, unless the individual subsequently satisfies the consent requirements of subsection (d).

(g) If the intestate decedent is the child’s deceased parent, the decedent’s child conceived posthumously by assisted reproduction is treated as in gestation at the decedent’s death for purposes of Section 2-104(b), if the child was born within forty-five months after the decedent’s death. If the intestate decedent is someone other than the child’s parent, a child conceived posthumously by assisted reproduction is treated as in gestation on the date that the child is in utero for purposes of Section 2-104(b).

(h) A child of assisted reproduction is a marital child if the child is produced for a married couple, before or after the decedent-spouse’s death.

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between two unmarried individuals should add appropriate language after “spouse” or “married individual.”

States are encouraged to enact a provision requiring genetic depositories to provide a consent form that would satisfy subsection (d)(1). The following provision is copied from Cal. Health & Safety Code § 1644.7 and .8, except that the word “heir” is changed to “child.”

[SECTION XXX. DUTY OF GENETIC DEPOSITORIES TO PROVIDE CONSENT FORM TO DEPOSITORS.

(a) Any entity that receives genetic material of a human being that may be used for conception shall provide to the person depositing his [or her] genetic material a form for use by the depositor that, if signed by the depositor, would satisfy the conditions set forth in Section 2-118(d) regarding the decedent’s intent for the use of that material. The use of the form is not mandatory, and the form is not the exclusive means of expressing a depositor’s intent. The form shall include advisements in substantially the following form:

“The use of this form for designating whether a child conceived during your life or after your death will be your child is not mandatory. However, if you wish to allow a child conceived during your life or after your death to be considered as your child (or beneficiary of other benefits such as life insurance or retirement) you must specify that in writing and you must sign that written expression of intent.

This specification can be revoked or amended only in writing signed by you (and not by spoken words).

You should consider how having a child conceived during your life or after your death affects your estate planning (including your will, trust, and other beneficiary designations for retirement benefits, life insurance, financial accounts, etc.) These issues can be complex, and you should discuss them with your attorney.”

(b) Any entity that receives genetic material of a human being that may be used for conception shall make available to the person depositing his or her genetic material a form that, if signed by the depositor, would revoke any previous expression of intent regarding the use of his or her genetic material necessary to satisfy the conditions set forth in Section 2-118(f). The use of the form is not mandatory, and the form is not the exclusive means of expressing a depositor’s intent with respect to revocation or amendment of a prior expression of intent. The form shall include advisements in substantially the following form:

“The use of this form to revoke or amend a previous form for designating whether a child conceived during your life or after your death will be your child is not mandatory. This specification can be revoked or amended only in a writing signed by you (and not by spoken words).

These issues can be complex, and you should discuss them with your attorney.”]

SECTION 2-119. PARENT AND CHILD RELATIONSHIP; CHILD BORN TO A GESTATIONAL MOTHER.

(a) This section applies for purposes of intestate succession by, through, or from a child who is conceived by means of assisted reproduction by a gestational mother.

(b) In this section:

(1) “gestational agreement” means an agreement in which a woman agrees to carry a child to birth for an intended parent or intended parents, whether or not the woman is the genetic mother.

(2) “gestational mother” means a woman who gives birth to a child under a gestational agreement.

(3) “intended parent” is an individual who entered into an agreement providing that he [or she] will be the parent of a child born to a gestational mother by means of assisted reproduction, whether or not he [or she] has a genetic relationship with the child.

(c) A child who is born by means of assisted reproduction to a gestational mother is the child of an intended parent and not of the gestational mother.

Comment

[Incomplete]

The definition of gestational agreement is based on the Comment to Article 8 of the Uniform Parentage Act, which states that the term “gestational mother” “applies to both a woman who, through assisted reproduction, performs the gestational function without being genetically related to a child, and a woman is both the gestational and genetic mother. The key is that an agreement has been made that the child is to be raised by the intended parents.” The Comment also points out that “The [practice in which the woman is both the gestational and genetic mother] has elicited disfavor in the ART community, which has concluded that the gestational mother’s genetic link to the child too often creates additional emotional and psychological problems in enforcing a gestational agreement.”

SECTION 2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH INTESTATE SUCCESSION.

(a) Adopted individuals, and individuals born out of wedlock, stepchildren, children of assisted reproduction, and children born to a gestational mother, and their respective descendants if appropriate to the class, are included in class gifts and other terms of relationship in accordance with the rules for intestate succession. Terms of relationship that do not differentiate relationships by blood from those by affinity, such as “uncles,” “aunts,” “nieces,” or “nephews,” are construed to exclude relatives by affinity. Terms of relationship that do not differentiate relationships by the half blood from those by the whole blood, such as “brothers,” “sisters,” “nieces,” or “nephews,” are construed to include both types of relationships.

(b) In addition to the requirements of subsection (a), in construing a dispositive provision of a transferor who is not the natural genetic parent, an individual born out of wedlock to the natural genetic parent is not considered the child of that parent unless the individual lived while a minor as a regular member of the household of that natural genetic parent or of that parent’s parent, brother, sister, spouse, or surviving spouse.

(c) In addition to the requirements of subsection (a), in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless (i) the adoption took place before the child reached the age of majority; (ii) the adopting parent was the child’s stepparent or foster parent; or (ii) the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.

[Alternative (c) for consideration by Drafting Committee]

(c) In addition to the requirements of subsection (a), in construing a dispositive provision of a transferor who is not the adopting parent, an adopted individual is not considered the child of the adopting parent unless (i) the adopting parent was the child’s stepparent or foster parent; or (ii) the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent. If the adoption took place before the child reached the age of majority, it is presumed that the adopted individual lived while a minor, either before or after the adoption, as a regular member of the household of the adopting parent.

(d) For purposes of the class closing rules, an individual in utero at a particular time is treated as living at that time if the individual lives 120 hours after birth. If the distribution date is the deceased parent’s death, a child produced posthumously by assisted reproduction is treated as living at the decedent’s death, if the child was born within 45 months after the deceased parent’s death and if the child lives 120 hours after birth. If the distribution date arises after the deceased parent’s death, a child produced posthumously by assisted reproduction is living when the child is in utero.

(e) For purposes of the class closing rules, an individual who is in the process of being adopted when the class closes is treated as an adopted child when the class closes if the adoption is subsequently granted.

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “spouse.”

Comment

Under Section 3-1006, an heir is allowed to recover property improperly distributed or its value from any distributee during the later of 3 years after the decedent’s death or 1 year after distribution. The 45 month period in subsection (d) is based on the 3-year period, with an additional 9 months tacked on to allow for a normal period of pregnancy.

SECTION 3-916. DISTRIBUTION IN CASE OF POSTHUMOUS CONCEPTION. The personal representative may delay distribution of the decedent’s estate if:

(a) the personal representative has received notice or has knowledge that the decedent’s surviving spouse intends to use genetic material to produce a child after the decedent’s death; and

(b) the posthumous birth of a child of assisted reproduction will have an effect on the distribution of the decedent’s estate.

Legislative Note: States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “spouse.”

Comment

This section is based on Cal. Prob. Code § 249.6.