D R A F T
FOR DISCUSSION ONLY
AMENDMENTS TO THE UNIFORM PROBATE CODE
NATIONAL CONFERENCE OF COMMISSIONERS
ON UNIFORM STATE LAWS
Draft of September 17, 2007
WITH PARTIAL COMMENTS
Copyright ©2007
By
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.
DRAFTING COMMITTEE TO AMEND 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 9th 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., 7th 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
http://www.nccusl.org
AMENDMENTS TO THE UNIFORM PROBATE CODE
TABLE OF CONTENTS
SECTION 2-103. SHARE OF HEIRS OTHER THAN SURVIVING SPOUSE...........................5
SECTION 2-104. REQUIREMENT THAT HEIR SURVIVE DECEDENT FOR 120 HOURS; AFTERBORN HEIRS...............................................................................................................7
SECTION 2-108. [RESERVED.] AFTERBORN HEIRS...............................................................8
SECTION 2-113. INDIVIDUALS RELATED TO DECEDENT THROUGH TWO LINES NOT ENTITLED TO MORE THAN ONE SHARE..........................................................................9
SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN CIRCUMSTANCES................................................................................................................10
SECTION 2-115. PARENT AND CHILD RELATIONSHIP; MARITAL AND NONMARITAL CHILDREN.............................................................................................................................12
SECTION 2-116. PARENT AND CHILD RELATIONSHIP; ADOPTED INDIVIDUAL ........14
SECTION 2-117. PARENT AND CHILD RELATIONSHIP; WHEN UNADOPTED STEPCHILD TREATED AS ADOPTED...............................................................................16
SECTION 2-118. PARENT AND CHILD RELATIONSHIP; CHILD OF ASSISTED REPRODUCTION OTHER THAN A CHILD BORN TO A GESTATIONAL MOTHER..17
SECTION 2-119. PARENT AND CHILD RELATIONSHIP; CHILD BORN TO A GESTATIONAL MOTHER....................................................................................................23
SECTION 2-120. EQUITABLE ADOPTION...............................................................................26
SECTION 2-705. CLASS GIFTS CONSTRUED TO ACCORD WITH INTESTATE SUCCESSION; EXCEPTIONS...............................................................................................27
SECTION 3-916. DISTRIBUTION IN CASE OF POSTHUMOUS CONCEPTION.................30
SUPPLEMENTAL PROVISIONS PROPOSING MISCELLANEOUS UPC AMENDMENTS
SECTION 1-109. COST OF LIVING ADJUSTMENT OF CERTAIN DOLLAR AMOUNTS..31
SECTION 2-213. WAIVER OF RIGHT TO ELECT AND OF OTHER RIGHTS......................33
SECTION 2-302. OMITTED CHILDREN...................................................................................38
SECTION 2-502. EXECUTION; WITNESSED OR NOTARIZED WILLS; HOLOGRAPHIC WILLS.....................................................................................................................................42
SECTION 2-504. SELF-PROVED WILL.....................................................................................47
SECTION 2-805. REFORMATION TO CORRECT MISTAKES...............................................48
SECTION 2-806. MODIFICATION TO ACHIEVE TRANSFEROR’S TAX OBJECTIVES....54
SECTION 3-406. FORMAL TESTACY PROCEEDINGS; CONTESTED CASES; TESTIMONY OF ATTESTING WITNESSES......................................................................56
• • •
Trust of Martin B...........................................................................................................................58
AMENDMENTS TO THE UNIFORM PROBATE CODE
PREFATORY NOTE
ARTICLE II REVISIONS
{Partially Revised}
The Uniform Probate Code was originally promulgated in 1969.
1990 Revisions. In 1990, Article II of the Code underwent significant revision. The 1990 revisions are were the culmination of a systematic study of the Code conducted by the Joint Editorial Board for the Uniform Probate Code (JEB-UPC now named the Joint Editorial Board for Uniform Trust and Estate Acts) and a special Drafting Committee to Revise Article II. The 1990 revisions concentrated on Article II, which is the article that covers the substantive law of intestate succession; spouse’s elective share; omitted spouse and children; probate exemptions and allowances; execution and revocation of wills; will contracts; rules of construction; disclaimers; and the effect of homicide and divorce on succession rights; and the rule against perpetuities and honorary trusts.
In the twenty or so years between the original promulgation of the Code and the 1990 revisions, several developments occurred that prompted the systematic round of review. Three themes were sounded: (1) the decline of formalism in favor of intent-serving policies; (2) the recognition that will substitutes and other inter-vivos transfers have so proliferated that they now constitute a major, if not the major, form of wealth transmission; (3) the advent of the multiple-marriage society, resulting in a significant fraction of the population being married more than once and having stepchildren and children by previous marriages and in the acceptance of a partnership or marital-sharing theory of marriage.
The 1990 revisions responded to these themes. The multiple-marriage society and the partnership/marital-sharing theory are were reflected in the revised elective-share provisions of Part 2. As the General Comment to Part 2 explains explained, the revised elective share grants granted the surviving spouse a right of election that implements implemented the partnership/marital-sharing theory by adjusting the elective share to the length of the marriage.
The children-of-previous-marriages and stepchildren phenomena are were reflected most prominently in the revised rules on the spouse’s share in intestacy.
The proliferation of will substitutes and other inter-vivos transfers is was recognized, mainly, in measures tending to bring the law of probate and nonprobate transfers into greater unison. One aspect of this tendency is was reflected in the restructuring of the rules of construction. Rules of construction are rules that supply presumptive meaning to dispositive and similar provisions of governing instruments. See Restatement (Third) of Property (Wills and Other Donative Transfers) § 11.3 (2003). Part 6 of the pre-1990 Code contained several rules of construction that applied only to wills. Some of those rules of construction appropriately applied only to wills; provisions relating to lapse, testamentary exercise of a power of appointment, and ademption of a devise by satisfaction exemplify such rules of construction. Other rules of construction, however, properly apply to all governing instruments, not just wills; the provision relating to inclusion of adopted persons in class gift language exemplifies this type of rule of construction. The 1990 revisions divided pre-1990 Part 6 into two parts — Part 6, containing rules of construction for wills only; and Part 7, containing rules of construction for wills and other governing instruments. A few new rules of construction are were also added.
In addition to separating the rules of construction into two parts, and adding new rules of construction, the revocation-upon-divorce provision (section 2-804) is was substantially revised so that divorce not only revokes devises, but also nonprobate beneficiary designations, in favor of the former spouse. Another feature of the 1990 revisions is was a new section (section 2-503) that brings brought the execution formalities for wills more into line with those for nonprobate transfers.
The 1990 Article II revisions also responded to other modern trends. During the period from 1969 to 1990, many developments occurred in the case law and statutory law. Also, many specific topics in probate, estate, and future-interests law were examined in the scholarly literature. The influence of many of these developments is was seen in the 1990 revisions of Article II.
2008 Revisions. In 2008, another round of revisions were adopted. The principal features of these revisions are summarized as follows:
Inflation Adjustments. Between 1990 and 2008, the Consumer Price Index rose by about 50 percent. By technical amendment, all of the dollar amounts in the following sections were raised by 50 percent: Sections 2-102, 2-201, 2-402, 2-403, 2-405, and 3-1201. In addition, a new cost of living adjustment section — Section 1-109 — was added.
{more TBA}
Legislative Note: The word “spouse” appears throughout Article II. States that recognize civil unions, domestic partnerships, or similar relationships between unmarried individuals should add appropriate language after “spouse” wherever that word appears in Article II. States that do not recognize such relationships between unmarried individuals, or marriages between same-sex partners, should also consider whether to recognize the spousal-type rights that partners acquired under the law of another jurisdiction in which the relationship was formed but who die domiciled in this state. Doing so would not be the equivalent of recognizing such relationships in this state but simply allowing those who move to and die in this state to retain the rights they previously acquired elsewhere.
PART 1
INTESTATE SUCCESSION
General Comment
{to be revised}
The pre-1990 Code’s basic pattern of intestate succession, contained in Part 1, was designed to provide suitable rules for the person of modest means who relies on the estate plan provided by law. The 1990 revisions are intended to further that purpose, by fine tuning the various sections and bringing them into line with developing public policy.
The principal features of the 1990 revisions are:
1. So-called negative wills are authorized, under which the decedent who dies intestate, in whole or in part, can by will disinherit a particular heir.
2. A surviving spouse receives the whole of the intestate estate, if the decedent left no surviving descendants and no parents or if the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has no descendants who are not descendants of the decedent. The surviving spouse receives the first $200,000 plus three-fourths of the balance if the decedent left no surviving descendants but a surviving parent. The surviving spouse receives the first $150,000 plus one-half of the balance of the intestate estate, if the decedent’s surviving descendants are also descendants of the surviving spouse but the surviving spouse has one or more other descendants. The surviving spouse receives the first $100,000 plus one-half of the balance of the intestate estate, if the decedent has one or more surviving descendants who are not descendants of the surviving spouse.
3. A system of representation called per capita at each generation is adopted as a means of more faithfully carrying out the underlying premise of the pre-1990 UPC system of representation. Under the per-capita-at-each-generation system, all grandchildren (whose parent has predeceased the intestate) receive equal shares.
4. Although only a modest revision of the section dealing with the status of adopted children and children born of unmarried parents is made at this time, the question is under continuing review and further revisions may be presented in the future.
5. The section on advancements is revised so that it applies to partially intestate estates as well as to wholly intestate estates.
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, the following rules apply:
(A) half of the intestate 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;
(B) but if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire intestate 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 who has one or more descendants who survive the intestate decedent, the intestate estate passes by representation to those descendants.
(B) if there are more than one deceased spouses who have one or more descendants who survive the intestate decedent, the intestate estate is divided into as many equal shares as there are such deceased spouses, each share passing by representation to those descendants.
COMMENT
This section provides for inheritance by descendants of the decedent, parents and their descendants, and grandparents and collateral relatives descended from grandparents; in line with modern policy, it eliminates more remote relatives tracing through great-grandparents.
Purpose and Scope of 1990 Revisions. The 1990 revisions are were stylistic and clarifying, not substantive. The pre-1990 version of this section contained the phrase “if they are all of the same degree of kinship to the decedent they take equally (etc.).” That language has been was removed. It was unnecessary and confusing because the system of representation in Section 2-106 gives equal shares if the decedent’s descendants are all of the same degree of kinship to the decedent.
The word “descendants” replaces replaced the word “issue” in this section and throughout the revisions of Article II. The term issue is a term of art having a biological connotation. Now that inheritance rights, in certain cases, are extended to adopted children, the term descendants is a more appropriate term.
2008 Revisions. In addition to making a few stylistic changes, the 2008 revisions added paragraph (5), granting inheritance rights to descendants of the intestate’s deceased spouse(s). The term deceased spouse refers to an individual to whom the intestate was married at the spouse’s death.
Historical Note. This Comment was revised in 2008.
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 was born before the decedent’s death 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. If it is not established by clear and convincing evidence that an individual who was in gestation at the decedent’s death lived 120 hours after birth, it is deemed that the individual failed to survive for the required period.
(c) This section applies for purposes of homestead allowance, exempt property, and intestate succession, and the decedent’s heirs are determined accordingly.
(d) This section is not to be applied if its application would result in a taking of the intestate estate by the state under Section 2-105.
{??? SHOULD THE INTRO TO SUBSECTION (d) BE REVISED TO SAY THAT THE 120 HOUR REQUIREMENT OF SURVIVAL IS NOT TO BE APPLIED IF .....?? IN THE CURRENT CODE, THIS PROVISION ONLY APPLIES TO WHAT IS NOW SUB (a) AND (c), NOT TO SUB (b). FORMER 2-108 (NOW SUB (b)) DID NOT HAVE SUCH A QUALIFICATION.}
COMMENT
This section is a limited version of the type of clause frequently found in wills to take care of the common accident situation, in which several members of the same family are injured and die within a few days of one another. The Uniform Simultaneous Death Act provides only a partial solution, since it applies only if there is no proof that the parties died otherwise than simultaneously. (Section 2-702 recommends revision of the Uniform Simultaneous Death Act.)
This section requires an heir to survive by five days in order to succeed to the decedent’s intestate property; for a comparable provision as to wills and other governing instruments, see Section 2-702. This section avoids multiple administrations and in some instances prevents the property from passing to persons not desired by the decedent. The 120-hour period will not delay the administration of a decedent’s estate because Sections 3-302 and 3-307 prevent informal issuance of letters for a period of five days from death. The last sentence Subsection (d) prevents the survivorship requirement from defeating inheritance by the last eligible relative of the intestate who survives him or her for any period.
In the case of a surviving spouse who survives the 120-hour period, the 120-hour requirement of survivorship does not disqualify the spouse’s intestate share for the federal estate-tax marital deduction. See Int.Rev.Code § 2056(b)(3).
2008 Revisions. In 2008, this section was reorganized, revised, and combined with former Section 2-108. What appeared as former Section 2-104 now appears as subsections (a), (c), and (d). What appeared as former Section 2-108 now appears as subsection (b). Subsections (a) and (b) now distinguish between an individual who was born before the decedent’s death and an individual who was in gestation at the decedent’s death. With respect to an individual who was born before the decedent’s death, it must be established by clear and convincing evidence that the individual survived the decedent by 120 hours. For a comparable provision applicable to wills and other governing instruments, see Section 2-702. With respect to an individual who was in gestation at the decedent’s death, it must be established by clear and convincing evidence that the individual lived for 120 hours after birth.
Historical Note. This Comment was revised in 2008.
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.
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.
Comment
This section prevents double inheritance. It has potential application in a case in which a deceased person’s brother or sister marries the spouse of the decedent and adopts a child of the former marriage; if the adopting parent died thereafter leaving the child as a natural and adopted grandchild of its grandparents, this section prevents the child from taking as an heir from the grandparents in both capacities.
2008 Revisions. As originally promulgated, this section was limited to a case in which an individual was related to the decedent through two lines of relationship. In 2008, this section was revised so that it applies whenever an individual is related to the decedent in such a manner as would entitled the individual to more than one share. As revised, this section applies, for example, to a situation in which a grandparent adopts a grandchild.
Historical Note. This Comment was revised in 2008.
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.
(a) A parent is barred from inheriting from or through a child of the parent if (i) the parent’s parental rights have been terminated and the parent-child relationship has not been judicially reestablished or (ii) it is established by clear and convincing evidence that the parent has engaged in conduct that would have been grounds for termination of parental rights.
(b) For purposes of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.
COMMENT
This Section replaces former Section 2-114(c), which provided: “(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.”
Statutes providing the grounds for termination of parental rights include Mich. Comp. L. Ann. § 712A.19b; Tex. Fam. Code §§ 161.001 to .007; {more citations to be added}
{Comment to be continued}
BELOW IS THE NY STATUTE, AS REVISED IN 2006. WOULD IT BE A BETTER APPROACH TO SUBSTITUTE THE IDEA OF (a)(1) FOR OUR (a)(ii)??
NY EPTL § 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 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.
(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.
HERE IS A POSSIBLE REWRITE OF 2-114(a)(ii), based on the NY statute:
SECTION 2-114. PARENT BARRED FROM INHERITING IN CERTAIN CIRCUMSTANCES.
(a) A parent is barred from inheriting from or through a child of the parent if (i) the parent’s parental rights were terminated and the parent-child relationship was not judicially reestablished or (ii) it is established by clear and convincing evidence that the parent, before the child reached the age of majority, {??? failed or ???} refused to provide for the child or abandoned the child, whether or not the child died before having attained the age of majority, unless the parental relationship and duties were subsequently resumed and continued until the earlier of the child’s death or majority.
(b) For purposes of intestate succession from or through the deceased child, a parent who is barred from inheriting under this section is treated as if the parent predeceased the child.
AT THE ANNUAL MEETING, THE VIEW WAS EXPRESSED THAT (a)(ii) SHOULD BE DELETED ENTIRELY, BECAUSE IT WOULD GENERATE LITIGATION AND PROOF OF BEHAVIOR YEARS EARLIER MIGHT BE HARD TO OBTAIN AND MURKY. PERHAPS WE COULD ANSWER THIS POINT BY STRESSING THE HIGH BURDEN OF PROOF ON THE HEIR WHO WOULD BENEFIT BY DENIAL OF INHERITANCE RIGHTS TO THE PARENT.
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 otherwise provided in [this Part] [the laws of intestate succession], an individual is the child of the child’s genetic parents, regardless of their marital status. The parent-child relationship may {??? shall ???} be established under [Articles 1 through 6 of the Uniform Parentage Act (2000), as amended in 2002] [applicable state law] [insert appropriate statutory reference].
I ADDED TO SUB (b) THE INTRODUCTORY PHRASE “EXCEPT AS OTHERWISE PROVIDED IN [THIS PART] [THE LAWS OF INTESTATE SUCCESSION]” BECAUSE AN ADOPTED CHILD IS NOT THE CHILD OF THE CHILD’S GENETIC PARENTS IF NO EXCEPTION APPLIES AND ALSO BECAUSE THIRD-PARTY EGG AND SPERM DONORS ARE NOT THE DONOR’S CHILD.
Possible Alternative subsection (b)
Alternative subsection (b) for States that have not enacted the
Uniform Parentage Act (2000, as amended in 2002)
(b) Except as otherwise provided in [this Part] [the laws of intestate succession], an individual is the child of the child’s genetic parents, regardless of their marital status. A married man is treated as the genetic father of a child if he is presumed to be the child’s father under [applicable state law] [insert appropriate statutory reference] and his paternity has not been disproved by adjudication {??? within two years of the child’s birth ???} {??? before his death ???} {??? We could say “within the earlier of two years of the child’s birth or the presumed father’s death”, but note that that that would preclude adjudication disproving paternity after the presumed father’s death ???}.
Legislative Note: States that have not enacted the Uniform Parentage Act (2000, as amended in 2002) should insert in subsection (b)(2) either “applicable state law” or an appropriate statutory reference instead of the reference to the Uniform Parentage Act (2000, as amended in 2002). Two of the principal features of Articles 1 through 6 of the Uniform Parentage Act (2000, as amended in 2002) are (i) the presumption of paternity and the procedure under which that presumption can be disproved by adjudication and (ii) the acknowledgment of paternity and the procedure under which that acknowledgment can be rescinded or challenged. States that have not enacted similar provisions should consider whether such provisions should be added as part of Section 2-115(b). States that have not enacted the Uniform Parentage Act (2000, as amended in 2002) should also make sure that applicable state law authorizes parentage to be established after the death of the alleged parent, as provided in the Uniform Parentage Act § 509 (2000, as amended in 2002), which provides: “For good cause shown, the court may order genetic testing of a deceased individual.”
COMMENT
This Section replaces former Section 2-114(a), which provided: “(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].”
Subsection (b) provides that the parent-child relationship may be established under [Articles 1 through 6 of the Uniform Parentage Act (2000, as amended in 2002)]. Section 203 of the Uniform Parentage Act provides: “Unless parental rights are terminated, a parent-child relationship established under this [Act] applies for all purposes, except as otherwise specifically provided by other law of this State.” (emphasis added). The Official Comment to this section specifically refers to the Uniform Probate Code. Consequently, in case of any conflict between the Uniform Parentage Act and the Uniform Probate Code, the Uniform Probate Code takes precedence.
{Comment to be continued}
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) In this section, “relative” means a grandparent or a descendant of a grandparent.
(c) An adopted individual is the child of the individual’s adopting parent or parents. An individual who is in the process of being adopted by a married couple when one of the spouses dies is treated as an individual who is adopted by the decedent spouse if the adoption is subsequently granted to the decedent’s surviving spouse. {??? SHOULD WE ADD: An individual who is in the process of being adopted by the spouse of a genetic parent when that spouse dies is treated as an individual who is adopted by that deceased spouse if the genetic parent survives the deceased spouse ??? IF WE DO DECIDE TO INCLUDE THIS IDEA, WE MIGHT CARVE OUT THE LAST TWO SENTENCES AS A SEPARATE SUBSECTION, AS FOLLOWS:
(d) For purposes of subsection (c), an individual is treated as an individual who is adopted by the deceased spouse if the individual is in the process of being adopted by:
(1) a married couple when one of the spouses dies and the adoption is subsequently granted to the decedent’s surviving spouse; or
(2) the spouse of a genetic parent when that spouse dies {??? and the genetic parent survives the deceased spouse ???}.}
(d) Except as otherwise provided in subsections (e), (f), and (g), an adopted individual is not the child of the individual’s genetic parents.
(e) 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 the right of the child or a descendant of the child to inherit from or through that other genetic parent.
(f) An individual who is adopted by a relative of a genetic parent, or by the spouse or surviving spouse of a relative of a genetic parent, continues to be a child of both genetic parents, but only for purposes of the right of the child or a descendant of the child to inherit from or through either genetic parent.
(g) An individual who is adopted after the death of both genetic parents, but not by a relative of a genetic parent, nor by the spouse or surviving spouse of a relative of a genetic parent, continues to be a child of both genetic parents, but only for purposes of the right of the child or a descendant of the child to inherit through either genetic parent.
(h) If an individual was adopted more than once, the term “genetic parent” in subsections (e), (f), and (g) includes a previous adoptive parent.
IN SUBSECTION (h), DO WE MEAN “INCLUDES” OR DO WE MEAN “MEANS” ??? THIS SUBSECTION IS COPIED FROM A CALIFORNIA STATUTE, AND THAT STATUTE SAYS “INCLUDED.”
COMMENT
This Section replaces former Section 2-114(b), which provided: “(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.”
{Comment to be continued}
SECTION 2-117. PARENT AND CHILD RELATIONSHIP; WHEN UNADOPTED STEPCHILD TREATED AS ADOPTED.
(a) In this section, “stepchild” means a child of an individual’s spouse, deceased spouse, former spouse, or deceased former spouse.
(b) For purpose of the right of a stepchild to inherit from {??? OR THROUGH ???} the stepchild’s stepparent, a stepchild is treated as a child who has been adopted by the stepchild’s stepparent if:
(1) the relationship began during the stepchild’s minority and continued throughout the lifetime of the stepparent; and
(2) the stepparent was in the process of adopting the stepchild when the stepparent died; or
(3) it is established by clear and convincing evidence that the stepparent, during the stepchild’s minority, attempted to adopt the stepchild and would have adopted the stepchild but for (i) the refusal of a genetic parent to consent to the adoption or (ii) the existence of another 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.”
IF WE ARE UNEASY ABOUT THIS SECTION, WE COULD DELETE IT AND RELY ON THE DOCTRINE OF EQUITABLE ADOPTION AND ON THE ADDED SENTENCE TO 2-116(c). NOTE, THOUGH, THAT THAT SENTENCE ALLOWS INHERITANCE FROM THE CHILD AS WELL AS BY {??? OR THROUGH ???} THE CHILD.
IF WE KEEP THIS SECTION, SHOULD WE RETHINK THE PHRASE “DURING THE CHILD’S MINORITY” IN VIEW OF THE FACT THAT IN SOME STATES ADULT ADOPTIONS ARE NOT ALLOWED ??
SECTION 2-118. PARENT AND CHILD RELATIONSHIP; CHILD CONCEIVED BY 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 as defined in Section 2-119.
(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;
(C) donation of embryos;
(D) in-vitro fertilization and transfer of embryos; and
(E) intracytoplasmic sperm injection.
(2) “functioned as a parent of the child” means behaving toward the child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, such as fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, bringing the child into the individual’s household as a regular member of that household, and assuming custody of the child.
(3) “incapacity” means the inability of an individual to function as a parent of a child because of the individual’s physical or mental condition.
(4) “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 as defined in Section 2-119; or
(C) an individual who, under subsection (d), is determined to be the parent of a child conceived by assisted reproduction.
(c) A third-party donor is not the parent of a child who is conceived by means of assisted reproduction, nor is the child the child of a third-party donor.
(d) Except as otherwise provided in subsections (f) and (g), an individual is a parent of a child who is conceived by means of assisted reproduction, and the child is a child of that individual, if the individual:
(1) signed a record, before or after the child’s birth, expressing consent to be treated as the child’s parent;
(2) functioned as a parent of the child; or
(3) intended to function as a parent of the child but was prevented from doing so by an event such as death or incapacity.
HOW DOES THIS SECTION APPLY TO ARTIFICIAL INSEMINATION HUSBAND, WHERE THE CHILD IS THE GENETIC CHILD OF BOTH HUSBAND AND WIFE ??? THIS HAS BEEN THE SITUATION IN MOST OF THE CASES OF POSTHUMOUS CONCEPTION.
IN THE CASE OF TRUST OF MARTIN B., -- N.Y.S.2d ----, 2007 WL 2177221 (N.Y.Sur. Ct. 2007), 2007 N.Y. Slip Op. 27306, , set forth at the end of this draft at page 58, THE NY SURROGATE’S COURT HELD THAT A CHILD OF POSTHUMOUS CONCEPTION WAS INCLUDED IN A CLASS GIFT IN A CASE IN WHICH THE DECEASED FATHER HAD SIGNED A FORM THAT STATED “IN THE EVENT OF MY DEATH I AGREE THAT MY SPOUSE SHALL HAVE THE SOLE RIGHT TO MAKE DECISIONS REGARDING THE DISPOSITION OF MY SEMEN SAMPLES. I AUTHORIZE REPRO LAB TO RELEASE MY SPECIMENS TO MY LEGAL SPOUSE [NAMING HER].” ANOTHER FORM HE SIGNED STATED “I, [NAMING HIM], HEREBY CERTIFY THAT I AM MARRIED OR INTIMATELY INVOLVED WITH [NAMING HER] AND THE CRYOPRESERVED SPECIMENS STORED AT REPRO LAB WILL BE USED FOR FUTURE INSEMINATIONS OF MY WIFE/INTIMATE PARTNER.” WOULD THESE FORMS SATISFY SUBSECTION (d), AND IF NOT, HOW SHOULD WE REVISE SUB (d) ???
(e) For purposes of subsection (d), if a child is born to a married woman and she and her husband are not separated and no divorce or annulment proceedings are pending, then, in the absence of clear and convincing evidence to the contrary, both spouses are presumed to have consented to function as the child’s parent.
I PROPOSE EITHER DELETING SUBSECTION (e) OR MODIFYING IT, BECAUSE IT DOES NOT COORDINATE WITH (d). SUB (e) NOW SAYS THAT BOTH SPOUSES ARE PRESUMED TO HAVE CONSENTED TO FUNCTION AS THE PARENT OF THE CHILD. THE PROBLEM IS THAT (d) REQUIRES CONSENT IN A RECORD. WE CAN’T “PRESUME” THAT. I DON’T THINK WE WANT TO CHANGE (d)(1) TO TAKE OUT THE REQUIREMENT OF A CONSENT IN A RECORD.
CONVERSELY, WE COULD MODIFY (d) TO PRESUME THAT BOTH SPOUSES FUNCTIONED AS A PARENT OF THE CHILD OR INTENDED TO DO SO BUT WERE PREVENTED FROM DOING SO BY AN EVENT SUCH AS DEATH OR INCAPACITY, AS FOLLOWS:
(e) For purposes of subsection (d), if a child is born to a married woman and she and her husband are not separated and no divorce or annulment proceedings are pending, then, in the absence of clear and convincing evidence to the contrary, and in the absence of a consent in a record that satisfies subsection (d)(1), both spouses are presumed to have functioned as a parent of the child or, if an event such as death or incapacity prevented one or both from doing so, to have intended to function as a parent of the child.
(f) 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.
(g) If, in a record, an individual 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 requirements of subsection (d).
(h) If a parent of a child who is conceived posthumously by assisted reproduction dies intestate, the child is treated as in gestation at the decedent’s death for purposes of Section 2-104(b) if the child is born within forty-five months after the decedent’s death. If an individual other than the parent of a child who is conceived posthumously by assisted reproduction dies intestate, the child is treated as in gestation on the date that the child is in utero for purposes of Section 2-104(b).
SHOULD WE SWITCH FROM BIRTH WITHIN 45 MONTHS TO IN UTERO WITHIN 36 MONTHS? IN UTERO SHOULD BE EASY TO DETERMINE EXCEPT FOR ARTIFICIAL INSEMINATION. SO, MAYBE WE SHOULD SAY THE LATER OF THE TWO?
Legislative Note: 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 adapted from Cal. Health & Safety Code § 1644.7 and .8.”
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 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)(1) regarding the depositor’s consent to be treated as the child’s parent. The use of the form is not mandatory, and the form is not the exclusive means of expressing a depositor’s consent. The form shall include advisements in substantially the following form:
“The use of this form for designating whether you consent to be treated as the parent of a child conceived during your life or after your death is not mandatory. However, if you wish to allow a child conceived during your life or after your death to be treated as your child (or beneficiary of other benefits such as life insurance or retirement) you should specify that in writing and sign that written expression of consent.
This specification can be revoked or amended only in writing signed by you (and not by spoken words).
You should consider how being treated as a parent of 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 consent satisfying the conditions set forth in Section 2-118(g). 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 consent. 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 you consent to be treated as a parent of a child conceived during your life or after your death 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.”
COMMENT
This Section is largely consistent with the Restatement (Third) of Property: Wills and Other Donative Transfers § 14.8 (2007). That section of the Restatement applies to the treatment of a child conceived by means of assisted reproduction for class-gift purposes. Section 14.8 provides:
Restatement § 14.8. Child of Assisted Reproduction
Unless the language or circumstances indicate that the transferor had a different intention, a child of assisted reproduction is treated for class-gift purposes as a child of a person who consented to function as a parent of the child and who functioned in that capacity or was prevented from doing so by an event such as death or incapacity.
Data on children of assisted reproduction. The Center for Disease Control (CDC) of the U.S. Department of Health and Human Services collects data on children of assisted reproduction (ART). See Center for Disease Control, 2004 Assisted Reproductive Technology Success Rates (Dec. 2006) (2004 CDC Report), available at http://www.cdc.gov/ART/ART2004. The data, however, is of limited use because the definition of ART used in the CDC Report excludes artificial insemination (2004 CDC Report at 3), which is probably the most common form of assisted reproductive procedures. The CDC estimates that in 2004 ART procedures (excluding artificial insemination) accounted for slightly more than one percent of total U.S. births. 2004 CDC Report at 13. According to the Report: “The number of infants born who were conceived using ART ... increased steadily between 1996 and 2004. In 2004, 49,458 infants were born, which was more than double the 20,840 born in 1996.” 2004 CDC Report at 57. “The average age of women using ART services in 2004 was 36. The largest group of women using ART services were women younger than 35, representing 41% of all ART cycles carried out in 2004. Twenty-one percent of ART cycles were carried out among women aged 35-37, 19% among women aged 38-40, 9% among women aged 41-42, and 9% among women older than 42.” 2004 CDC Report at 15. Updates of the 2004 CDC Report are to be posted at http://www.cdc. gov/ART/ART2004.
Functioned as a parent of the child. The term “functioned as a parent of the child” is derived from the Restatement (Third) of Property: Wills and Other Donative Transfers (2007). The definition of that term in subsection (b)(2) is amplified in the Reporter’s Note No. 4 to Section 14.5 of the Restatement as follows:
Custodial responsibility refers to physical custodianship and supervision of a child. It usually includes, but does not necessarily require, residential or overnight responsibility.
Decisionmaking responsibility refers to authority for making significant life decisions on behalf of the child, including decisions about the child’s education, spiritual guidance, and health care.
Caretaking functions are tasks that involve interaction with the child or that direct, arrange, and supervise the interaction and care provided by others. Caretaking functions include but are not limited to all of the following:
(a) satisfying the nutritional needs of the child, managing the child’s bedtime and wake-up routines, caring for the child when sick or injured, being attentive to the child’s personal hygiene needs including washing, grooming, and dressing, playing with the child and arranging for recreation, protecting the child’s physical safety, and providing transportation;
(b) directing the child’s various developmental needs, including the acquisition of motor and language skills, toilet training, self-confidence, and maturation;
(c) providing discipline, giving instruction in manners, assigning and supervising chores, and performing other tasks that attend to the child’s needs for behavioral control and self-restraint;
(d) arranging for the child’s education, including remedial or special services appropriate to the child’s needs and interests, communicating with teachers and counselors, and supervising homework;
(e) helping the child to develop and maintain appropriate interpersonal relationships with peers, siblings, and other family members;
(f) arranging for health-care providers, medical follow-up, and home health care;
(g) providing moral and ethical guidance;
(h) arranging alternative care by a family member, babysitter, or other child- care provider or facility, including investigation of alternatives, communication with providers, and supervision of care.
Parenting functions are tasks that serve the needs of the child or the child’s residential family. Parenting functions include caretaking functions, as defined in Paragraph (5), and all of the following additional functions:
(a) providing economic support;
(b) participating in decisionmaking regarding the child’s welfare;
(c) maintaining or improving the family residence, including yard work, and house cleaning;
(d) doing and arranging for financial planning and organization, car repair and maintenance, food and clothing purchases, laundry and dry cleaning, and other tasks supporting the consumption and savings needs of the household;
(e) performing any other functions that are customarily performed by a parent or guardian and that are important to a child’s welfare and development.
{Comment to be continued}
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) “functioned as a parent of the child” means behaving toward the child in a manner consistent with being the child’s parent and performing functions that are customarily performed by a parent, such as fulfilling parental responsibilities toward the child, recognizing or holding out the child as the individual’s child, materially participating in the child’s upbringing, bringing the child into the individual’s household as a regular member of that household, and assuming custody of the child.
(2) “gestational agreement” means an agreement, whether enforceable or not, 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. A gestational agreement does not apply to the birth of a child conceived by means of sexual intercourse.
(3) “gestational mother” means a woman who gives birth to a child under a gestational agreement.
(4) “intended parent” is an individual who entered into an agreement providing that the individual will be the parent of a child born to a gestational mother by means of assisted reproduction, whether or not the individual has a genetic relationship with the child.
(c) A child who is born by means of assisted reproduction to a gestational mother is not the child of the gestational mother unless she retained or gained physical possession of and functioned as a parent of the child.
(d) A child who is born by means of assisted reproduction to a gestational mother is the child of an intended parent who:
(1) gained physical possession of and functioned as a parent of the child; or
(2) died while the gestational mother was pregnant if (i) there were two intended parents {??? who were married to each other ???} and (ii) the surviving intended parent gained physical possession of and functioned as a parent of the child.
SHOULD WE REPLACE THE PHRASE “GAINED PHYSICAL POSSESSION OF” WITH “GAINED PHYSICAL CUSTODY OF”? I’M ALSO WORRIED ABOUT SOMEONE ILLEGALLY ABDUCTING THE CHILD AND NOT BEING CAUGHT. HOW DO WE HANDLE THAT TYPE OF SITUATION? IN THE CASE OF AN ILLEGAL ABDUCTION, WOULD IT MAKE SENSE TO SAY THAT THE CHILD HAS A RIGHT TO INHERIT FROM AND THROUGH THE PARENT BUT THE PARENT HAS NO RIGHT TO INHERIT FROM AND THROUGH THE CHILD ??
The Uniform Adoption Act defines “legal custody” and “physical custody.”
“‘Legal custody’ means the right and duty to exercise continuing general supervision of a minor as authorized by law. The term includes the right and duty to protect, educate, nuture, and discipline the minor and to provide the minor with food, clothing, shelter, medical care, and a supportive environment.”
“‘Physical custody’ means the physical care and supervision of a minor.”
SHOULD WE ALSO ADD TO (d) LANGUAGE THAT WOULD PROVIDE THAT THE CHILD IS A CHILD OF AN INTENDED PARENT IF THERE IS ONLY ONE INTENDED PARENT AND THAT INTENDED PARENT DIED WHILE THE GESTATIONAL MOTHER WAS PREGNANT AND A RELATIVE (OR SPOUSE OR SURVIVING SPOUSE) OF THE INTENDED PARENT GAINED PHYSICAL POSSESSION OF AND FUNCTIONED AS A PARENT OF THE CHILD?
SAME IF THERE ARE TWO INTENDED PARENTS AND BOTH DIED WHILE THE GESTATIONAL MOTHER WAS PREGNANT, AND A RELATIVE (OR SPOUSE OR SURVIVING SPOUSE) OF EITHER INTENDED PARENT GAINED PHYSICAL POSSESSION OF AND FUNCTIONED AS A PARENT OF THE CHILD?
HERE IS POSSIBLE LANGUAGE THAT WOULD REPLACE SUB (d) AND ACHIEVE BOTH OF THE ABOVE:
(d) A child who is born by means of assisted reproduction to a gestational mother is the child of an intended parent who:
(1) gained physical possession of and functioned as a parent of the child; or
(2) died while the gestational mother was pregnant if:
(A) (i) there were two intended parents {??? who were married to each other ???} and (ii) the other intended parent survived the birth of the child and gained physical possession of and functioned as a parent of the child;
(B) (i) there were two intended parents {??? who were married to each other ???}, (ii) the other intended parent also died while the gestational mother was pregnant, and (iii) a relative of either deceased intended parent or the spouse or surviving spouse of a relative of either deceased intended parent gained physical possession of and functioned as a parent of the child; or
(C) (i) there was no other intended parent and (ii) a relative of or the spouse or surviving spouse of a relative of the deceased intended parent gained physical possession of and functioned as a parent of the child.
NOTE THAT IF WE ADOPT THE ABOVE, WE WILL NEED TO ADD A DEFINITION OF “RELATIVE,” AS WE HAVE DONE IN 2-705, INFRA.
COMMENT
Definition of gestational agreement. 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 who 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.”
Functioned as a parent of the child. See the Comment to Section 2-118 for additional explanation of this term.
{Comment to be continued}
SECTION 2-120. EQUITABLE ADOPTION.
Nothing in this [Part] precludes, limits, or affects application of the judicial doctrine of equitable adoption.
COMMENT
On the doctrine of equitable adoption, see Restatement (Third) of Property: Wills and Other Donative Transfers § 2.5, cmt. k &Reporter’s Note No. 7 (1999).
SECTION