BILL NUMBER: AB 204 ENROLLED
BILL TEXT
PASSED THE ASSEMBLY AUGUST 25, 2005
PASSED THE SENATE JULY 1, 2005
AMENDED IN SENATE JUNE 22, 2005
AMENDED IN SENATE JUNE 6, 2005
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, 249.6, and 249.8 of the Probate
Code, relating to decedents' estates.
LEGISLATIVE COUNSEL'S DIGEST
AB 204, 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 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 require that specification, and any revocation or
amendment thereof, to be dated. The bill would additionally delete a
requirement that the specification, and revocation or amendment
thereof, be signed by at least one competent witness.
(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 who has a superior right to the
payment, delivery, or transfer of the decedent's property. 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.
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 by the decedent and dated.
(2) The specification may be revoked or amended only by a writing,
signed by the decedent and dated.
(3) A person is designated by the decedent to control the use of
the genetic material.
(b) The person 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 249.6 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
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
paragraph (3) of subdivision (a) of Section 249.5 and at least one
competent witness, and dated.
(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 is personally liable to a person who,
pursuant to Section 249.5, has a superior right to the payment,
delivery, or transfer of the decedent's property. 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 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.