BILL NUMBER: AB 204 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 19, 2005
AMENDED IN ASSEMBLY MARCH 10, 2005
INTRODUCED BY Assembly Member Harman
JANUARY 31, 2005
An act to amend Sections 249.5 and 294.7 ,
249.6, and 249.8 of the Probate Code, relating to decedents'
estates.
LEGISLATIVE COUNSEL'S DIGEST
AB 204, as amended, Harman. Decedents' estates: posthumously
conceived children.
(1) Existing law provides for the distribution of a decedent's
estate among heirs and beneficiaries. Existing law provides 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
decedent's death, other than a child conceived as a result of human
cloning, is deemed to have been born in the decedent's lifetime if
the child or his or her representative proves by clear and convincing
evidence that specified conditions are satisfied. Those conditions
include the requirement that the child or the child's
representative has given written notice by certified mail that the
decedent's genetic material was available for the purpose of
posthumous conception decedent specify in writing that
his or her genetic material shall be used for posthumous
conception of a child of the decedent, and that the specification may
be revoked or amended only by a signed writing .
This bill would instead require that the decedent's
spouse or registered domestic partner or some other designated
person, as specified, has given that written notice
also require that specification, and any revocation or amendment
thereof, to be dated .
(2) Existing law bars a decedent's child, conceived after the
decedent's death, or the child's representative from making a claim
against the person making or receiving the distribution of the
decedent's property when the claim is based on wrongful distribution
and written notice has not been given in a timely manner, as
specified.
This bill would specify that that provision applies to a decedent'
s child, conceived after the death of the decedent, who is subject to
the provision of law that requires that notice be given.
(2) Existing law, for purposes of determining rights to property
to be distributed upon a decedent's death, requires the person
designated by the decedent to use his or her genetic material to be
either the spouse or registered domestic partner of the decedent or
some other person designated by the decedent, as specified. This
provision also requires a posthumously conceived child or his or her
representative to give written notice by certified mail that the
decedent's genetic material was available for posthumous conception.
This bill would revise that provision to delete the reference to
the spouse or registered domestic partner and would require the
person designated by the decedent to control the use of the genetic
material to give that written notice.
(3) Existing law provides that a person with the power to control
the distribution of the decedent's property or death benefits does
not incur liability for making a distribution or payment if that
distribution or payment occurred prior to receiving notice or actual
knowledge of the existence of genetic material.
This bill would also provide that each person to whom payment,
delivery, or transfer of the decedent's property is made shall be
personally liable to any person having a superior right by testate or
intestate succession from the decedent. The bill would specify the
limitations on that liability and would provide that an action to
impose liability shall be barred 3 years after distribution to the
holder of the decedent's property or 3 years after discovery of
fraud, whichever is later.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION. 1. Section 249.5 of the Probate Code is amended 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
and born 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 and dated by the
decedent and at least one competent witness.
(2) The specification may be revoked or amended only by a writing,
signed and dated by the decedent and at least one
competent witness.
(3) The person A person is
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. control the use of the genetic
material.
(b) The person named in subparagraph (A) or (B) of
paragraph (3) of subdivision (a) designated by the
decedent to control the use of the genetic material 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. 2. Section 249.7 of the Probate Code is amended 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 who is subject to Section 249.5, 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. 2. Section 249.6 of the Probate
Code is amended 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 or children 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.
(e) Each person to whom payment, delivery, or transfer of the
decedent's property is made pursuant to this section is personally
liable to any person having a superior right by testate or intestate
succession from the decedent. The aggregate of the personal liability
of a person shall not exceed the fair market value, valued as of the
time of the transfer, of the property paid, delivered, or
transferred to the person under this section, less the amount of any
liens and encumbrances on that property at that time.
(f) In addition to any other liability a person may have pursuant
to this section, any person who fraudulently secures the payment,
delivery, or transfer of the decedent's property pursuant to this
section shall be liable to the person having a superior right for
three times the fair market value of the property.
(g) An action to impose liability under this section shall be
barred three years after the distribution to the holder of the
decedent's property, or three years after the discovery of fraud,
whichever is later. The three year period specified in this
subdivision may not be tolled for any reason.
SEC. 3. Section 249.8 of the Probate
Code is amended to read:
249.8.
Notwithstanding Section 249.6, any interested person may file a
petition in the manner prescribed under in
Section 248 or 17200 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.