BILL NUMBER: AB 1910 CHAPTERED 09/25/04 CHAPTER 775 FILED WITH SECRETARY OF STATE SEPTEMBER 25, 2004 APPROVED BY GOVERNOR SEPTEMBER 24, 2004 PASSED THE ASSEMBLY AUGUST 24, 2004 PASSED THE SENATE AUGUST 18, 2004 AMENDED IN SENATE AUGUST 16, 2004 AMENDED IN SENATE JUNE 29, 2004 AMENDED IN SENATE JUNE 21, 2004 AMENDED IN SENATE JUNE 15, 2004 AMENDED IN ASSEMBLY APRIL 27, 2004 INTRODUCED BY Assembly Member Harman FEBRUARY 9, 2004 An act to amend Sections 7611, 7630, and 7650 of the Family Code, to add Chapter 4.4 (commencing with Section 1644.7) to Division 2 of the Health and Safety Code, to amend Sections 10172 and 10172.5 of the Insurance Code, and to amend Section 6453 of, and to add Sections 249.5, 249.6, 249.7, and 249.8 to, the Probate Code, relating to probate. LEGISLATIVE COUNSEL'S DIGEST AB 1910, Harman. Decedents' estates: posthumously conceived children. Existing law provides for the distribution of a decedent's estate among heirs and beneficiaries. Existing law sets forth the conditions required to establish a parent and child relationship for purposes of intestate succession. Existing law regulates the payment of proceeds pursuant to a life insurance policy. Existing law, the Uniform Parentage Act, authorizes certain persons to bring an action to determine the existence or nonexistence of a father and child relationship, and sets forth the circumstances under which a man may be presumed to be the natural father of a child. Existing law also provides that, to the extent practicable, provisions governing the determination of a father and child relationship apply to the determination of a mother and child relationship. This bill would provide that, for purposes of determining rights to property to be distributed upon the death of a decedent, a child of the decedent conceived after the death of the decedent, other than a child conceived as a result of human cloning, shall be deemed to have been born in the lifetime of the decedent if the child or his or her representative proves by clear and convincing evidence that specified conditions are satisfied. This bill would prohibit a person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, and who has received notice or has actual knowledge that the decedent's genetic material was available for posthumous conception and was used in the manner intended by the decedent, as specified, from making a distribution of the property or paying death benefits payable by reason of the decedent's death before 2 years following the date of issuance of a certificate of the decedent's death or entry of judgment determining the fact of the decedent's death, whichever event occurs first, except as specified. The bill would also provide that a natural parent and child relationship may be established for purposes of intestate succession pursuant to the provisions described above. This bill would make related changes to provisions governing the payment of insurance policy proceeds. The bill would also enact provisions requiring entities that receive certain genetic material to provide related forms to the donors of that genetic material. The bill would also make related changes to the Uniform Parentage Act by providing that (1) if the child is conceived after the father' s death and if the conditions applicable with respect to determining rights to property to be distributed upon the death of the decedent are satisfied, the father may be presumed to be the natural father of the child, and (2) any interested party may bring an action at any time to determine the existence or nonexistence of that presumed parent and child relationship. The bill would incorporate additional changes to Section 10172.5 of the Insurance Code proposed by AB 2384, contingent upon the prior enactment of that bill. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 7611 of the Family Code is amended to read: 7611. A man is presumed to be the natural father of a child if he meets the conditions provided in Chapter 1 (commencing with Section 7540) or Chapter 3 (commencing with Section 7570) of Part 2 or in any of the following subdivisions: (a) He and the child's natural mother are or have been married to each other and the child is born during the marriage, or within 300 days after the marriage is terminated by death, annulment, declaration of invalidity, or divorce, or after a judgment of separation is entered by a court. (b) Before the child's birth, he and the child's natural mother have attempted to marry each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) If the attempted marriage could be declared invalid only by a court, the child is born during the attempted marriage, or within 300 days after its termination by death, annulment, declaration of invalidity, or divorce. (2) If the attempted marriage is invalid without a court order, the child is born within 300 days after the termination of cohabitation. (c) After the child's birth, he and the child's natural mother have married, or attempted to marry, each other by a marriage solemnized in apparent compliance with law, although the attempted marriage is or could be declared invalid, and either of the following is true: (1) With his consent, he is named as the child's father on the child's birth certificate. (2) He is obligated to support the child under a written voluntary promise or by court order. (d) He receives the child into his home and openly holds out the child as his natural child. (e) If the child was born and resides in a nation with which the United States engages in an Orderly Departure Program or successor program, he acknowledges that he is the child's father in a declaration under penalty of perjury, as specified in Section 2015.5 of the Code of Civil Procedure. This subdivision shall remain in effect only until January 1, 1997, and on that date shall become inoperative. (f) The child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied. SEC. 2. Section 7630 of the Family Code is amended to read: 7630. (a) A child, the child's natural mother, or a man presumed to be the child's father under subdivision (a), (b), or (c) of Section 7611, may bring an action as follows: (1) At any time for the purpose of declaring the existence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611. (2) For the purpose of declaring the nonexistence of the father and child relationship presumed under subdivision (a), (b), or (c) of Section 7611 only if the action is brought within a reasonable time after obtaining knowledge of relevant facts. After the presumption has been rebutted, paternity of the child by another man may be determined in the same action, if he has been made a party. (b) Any interested party may bring an action at any time for the purpose of determining the existence or nonexistence of the father and child relationship presumed under subdivision (d) or (f) of Section 7611. (c) An action to determine the existence of the father and child relationship with respect to a child who has no presumed father under Section 7611 or whose presumed father is deceased may be brought by the child or personal representative of the child, the Department of Child Support Services, the mother or the personal representative or a parent of the mother if the mother has died or is a minor, a man alleged or alleging himself to be the father, or the personal representative or a parent of the alleged father if the alleged father has died or is a minor. (d) An action under subdivision (c) shall be consolidated with a proceeding pursuant to Section 7662 if a proceeding has been filed under Chapter 5 (commencing with Section 7660). The parental rights of the alleged natural father shall be determined as set forth in Section 7664. The consolidated action shall be heard in the court in which the Section 7662 proceeding is filed, unless the court in which the action under subdivision (c) is filed finds, by clear and convincing evidence, that transferring the action to the other court poses a substantial hardship to the petitioner. Mere inconvenience does not constitute a sufficient basis for a finding of substantial hardship. If the court determines there is a substantial hardship, the consolidated action shall be heard in the court in which the paternity action is filed. SEC. 2.3. Section 7650 of the Family Code is amended to read: 7650. (a) Any interested person may bring an action to determine the existence or nonexistence of a mother and child relationship. Insofar as practicable, the provisions of this part applicable to the father and child relationship apply. (b) A woman is presumed to be the natural mother of a child if the child is in utero after the death of the decedent and the conditions set forth in Section 249.5 of the Probate Code are satisfied. SEC. 2.5. Chapter 4.4 (commencing with Section 1644.7) is added to Division 2 of the Health and Safety Code, to read: CHAPTER 4.4. GENETIC DEPOSITORIES 1644.7. 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 249.5 of the Probate Code, 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 after your death will be your heir is not mandatory. However, if you wish to allow a child conceived after your death to be considered as your heir (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 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." 1644.8. 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 249.5 of the Probate Code. 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 after your death will be your heir 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." 1644.9. This chapter does not apply to the application of somatic nuclear transfer technology to the creation of a human being that shares all of its nuclear genes with the person donating the implanted nucleus, commonly known as human cloning. For purposes of this section, the phrase "somatic cell nuclear transfer" means the process in which the nucleus of a somatic cell of an organism is transferred into an enucleated oocyte. SEC. 3. Section 10172 of the Insurance Code is amended to read: 10172. Notwithstanding Sections 751 and 1100 of the Family Code and Section 249.5 of the Probate Code, when the proceeds of, or payments under, a life insurance policy become payable and the insurer makes payment thereof in accordance with the terms of the policy, or in accordance with the terms of any written assignment thereof if the policy has been assigned, that payment shall fully discharge the insurer from all claims under the policy unless, before that payment is made, the insurer has received, at its home office, written notice by or on behalf of some other person that the other person claims to be entitled to that payment or some interest in the policy. SEC. 4. Section 10172.5 of the Insurance Code is amended to read: 10172.5. (a) Notwithstanding any other provision of law, each insurer admitted to transact life insurance in this state that fails or refuses to pay the proceeds of, or payments under, any policy of life insurance issued by it within 30 days after the date of death of the insured shall pay interest, at a rate not less than the then current rate of interest on death proceeds left on deposit with the insurer computed from the date of the insured's death, on any moneys payable and unpaid after the expiration of that 30-day period. This section shall apply only to deaths of insureds which occur on or after January 1, 1976. (b) Nothing in this section shall be construed to allow any insurer admitted to transact life insurance in this state to withhold payment of money payable under a life insurance policy to any beneficiary for a period longer than reasonably necessary to transmit that payment. Whenever possible payment shall be made within 30 days after the date of death of the insured. (c) In any case in which interest on the proceeds of, or payments under, any policy of life insurance becomes payable pursuant to subdivision (a), the insurer shall notify the named beneficiary or beneficiaries at their last known address that interest will be paid on the proceeds of, or payments under, that policy from the date of death of the named insured. That notice shall specify the rate of interest to be paid. In any case where the notice required by Section 249.5 of the Probate Code has been given to a life insurer, that insurer is not required to provide the notice required by this section until after it has been notified that a child has actually been born within two years of the death of the decedent. The obligation shall be deemed satisfied by giving notice to the person who first provides proof to the insurer that the child has been born alive. (d) This section shall not require the payment of interest in any case in which the beneficiary elects in writing delivered to the insurer to receive the proceeds of, or payments under, the policy by any means other than a lump-sum payment thereof. SEC. 4.5. Section 10172.5 of the Insurance Code is amended to read: 10172.5. (a) Notwithstanding any other provision of law, each insurer admitted to transact life insurance, credit life insurance, or accidental death insurance in this state that fails or refuses to pay the proceeds of, or payments under, any policy of life insurance issued by it within 30 days after the date of death of the insured shall pay interest, at a rate not less than the then current rate of interest on death proceeds left on deposit with the insurer computed from the date of the insured's death, on any moneys payable and unpaid after the expiration of the 30-day period. This section shall apply only to deaths of insureds which occur on or after January 1, 1976. (b) Nothing in this section shall be construed to allow any insurer admitted to transact life insurance, credit life insurance, or accidental death insurance in this state to withhold payment of money payable under a life insurance policy to any beneficiary for a period longer than reasonably necessary to transmit that payment. Whenever possible payment shall be made within 30 days after the date of death of the insured. (c) In any case in which interest on the proceeds of, or payments under, any policy of life insurance, credit life insurance, or accidental death insurance becomes payable pursuant to subdivision (a), the insurer shall notify the named beneficiary or beneficiaries at their last known address that interest will be paid on the proceeds of, or payments under, that policy from the date of death of the named insured. That notice shall specify the rate of interest to be paid. In any case where the notice required by Section 249.5 of the Probate Code has been given to a life insurer, that insurer is not required to provide the notice required by this section until after it has been notified that a child has actually been born within two years of the death of the decedent. The obligation shall be deemed satisfied by giving notice to the person who first provides proof to the insurer that the child has been born alive. (d) This section shall not require the payment of interest in any case in which the beneficiary elects in writing delivered to the insurer to receive the proceeds of, or payments under, the policy by any means other than a lump-sum payment thereof. SEC. 5. Section 249.5 is added to the Probate Code, to read: 249.5. For purposes of determining rights to property to be distributed upon the death of a decedent, a child of the decedent conceived after the death of the decedent shall be deemed to have been born in the lifetime of the decedent, and after the execution of all of the decedent's testamentary instruments, if the child or his or her representative proves by clear and convincing evidence that all of the following conditions are satisfied: (a) The decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent, subject to the following: (1) The specification shall be signed by the decedent and at least one competent witness. (2) The specification may be revoked or amended only by a writing, signed by the decedent and at least one competent witness. (3) The person designated by the decedent to use the genetic material shall be either of the following: (A) The spouse or registered domestic partner of the decedent, as of the decedent's date of death. (B) Some other person named in the specification as approved by the decedent to be the person designated by the decedent to use the genetic material for posthumous conception. (b) The child or the child's representative has given written notice by certified mail, return receipt requested, that the decedent' s genetic material was available for the purpose of posthumous conception. The notice shall have been given to a person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, within four months of the date of issuance of a certificate of the decedent' s death or entry of a judgment determining the fact of the decedent's death, whichever event occurs first. (c) The child was in utero using the decedent's genetic material and was in utero within two years of the date of issuance of a certificate of the decedent's death or entry of a judgment determining the fact of the decedent's death, whichever event occurs first. This subdivision does not apply to a child who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear transfer technology commonly known as human cloning. SEC. 6. Section 249.6 is added to the Probate Code, to read: 249.6. (a) Upon timely receipt of the notice required by Section 249.5 or actual knowledge by a person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, that person may not make a distribution of property or pay death benefits payable by reason of the decedent's death before two years following the date of issuance of a certificate of the decedent's death or entry of a judgment determining the fact of decedent's death, whichever event occurs first. (b) Subdivision (a) does not apply to, and the distribution of property or the payment of benefits may proceed in a timely manner as provided by law with respect to, any property if the birth of a child of the decedent conceived after the death of the decedent will not have an effect on any of the following: (1) The proposed distribution of the decedent's property. (2) The payment of death benefits payable by reason of the decedent's death. (3) The determination of rights to property to be distributed upon the death of the decedent. (4) The right of any person to claim a probate homestead or probate family allowance. (c) Subdivision (a) does not apply to, and the distribution of property or the payment of benefits may proceed in a timely manner as provided by law with respect to, any property if the person named in subparagraph (A) or (B) of paragraph (3) of subdivision (a) of Section 249.5 sends written notice by certified mail, return receipt requested, that the person does not intend to use the genetic material for the posthumous conception of a child of a decedent. This notice shall be signed by the person named in subparagraph (A) or (B) of paragraph (3) of subdivision (a) of Section 249.5 and at least one competent witness. (d) A person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, shall incur no liability for making a distribution of property or paying death benefits if that person made a distribution of property or paid death benefits prior to receiving notice or acquiring actual knowledge of the existence of genetic material available for posthumous conception purposes or the written notice required by subdivision (b) of Section 249.5. SEC. 7. Section 249.7 is added to the Probate Code, to read: 249.7. If the written notice required pursuant to Section 249.5 is not given in a timely manner to any person who has the power to control the distribution of either the decedent's property or death benefits payable by reason of the decedent's death, that person may make the distribution in the manner provided by law as if any child of the decedent conceived after the death of the decedent had predeceased the decedent without heirs. Any child of a decedent conceived after the death of the decedent, or that child's representative, shall be barred from making a claim against either the person making the distribution or the recipient of the distribution when the claim is based on wrongful distribution and written notice has not been given in a timely manner pursuant to Section 249.5 to the person making that distribution. SEC. 8. Section 249.8 is added to the Probate Code, to read: 249.8. Notwithstanding Section 249.6, any interested person may file a petition in the manner prescribed under Section 248 requesting a distribution of property of the decedent or death benefits payable by reason of decedent's death that are subject to the delayed distribution provisions of Section 249.6. The court may order distribution of all, or a portion of, the property or death benefits, if at the hearing it appears that distribution can be made without any loss to any interested person, including any loss, either actual or contingent, to a decedent's child who is conceived after the death of the decedent. The order for distribution shall be stayed until any bond required by the court is filed. SEC. 9. Section 6453 of the Probate Code is amended to read: 6453. For the purpose of determining whether a person is a "natural parent" as that term is used in this chapter: (a) A natural parent and child relationship is established where that relationship is presumed and not rebutted pursuant to the Uniform Parentage Act (Part 3 (commencing with Section 7600) of Division 12 of the Family Code). (b) A natural parent and child relationship may be established pursuant to any other provisions of the Uniform Parentage Act, except that the relationship may not be established by an action under subdivision (c) of Section 7630 of the Family Code unless any of the following conditions exist: (1) A court order was entered during the father's lifetime declaring paternity. (2) Paternity is established by clear and convincing evidence that the father has openly held out the child as his own. (3) It was impossible for the father to hold out the child as his own and paternity is established by clear and convincing evidence. (c) A natural parent and child relationship may be established pursuant to Section 249.5. SEC. 10. Section 4.5 of this bill incorporates amendments to Section 10172.5 of the Insurance Code proposed by both this bill and AB 2384. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2005, (2) each bill amends Section 10172.5 of the Insurance Code, and (3) this bill is enacted after AB 2384, in which case Section 4 of this bill shall not become operative.