BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 204 A
Assembly Member Harman B
As Amended June 6, 2005
Hearing Date: June 14, 2005 2
Probate Code 0
GMO:rm 4
SUBJECT
Decedents' Estates: Posthumously Conceived Children
DESCRIPTION
This bill would revise several provisions of the statute
enacted in 2004, that established rules for determining the
rights of a posthumously conceived and born child with
respect to distribution of property after a decedent's
death.
It would:
(1) require the decedent's written specifications
regarding the use of his or her
genetic material posthumously to be dated, as well as
signed;
(2) delete the requirement that the decedent's written
specifications be signed by
at least one competent witness;
(3) delete the reference to the decedent's designation of
his or her spouse or
domestic partner and substitute any person
specifically designated by the
decedent as the person in control of the use of
decedent's genetic material and
therefore required to give the required written
notice regarding availability of
the genetic material;
(4) make a person who receives payment or other property
as a distribution of
(more)
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decedent's property liable to any person with
superior right to the payment
or property for the fair market value of the payment
or property at the time of
transfer, with a triple penalty for fraud; and
(5) impose a three-year statute of limitation on an action
to recover payment or
property.
BACKGROUND
In enacting AB 1910 (Harman, Chapter 775, Statutes 2004)
the state finally recognized that advances in "assisted
reproduction" technology has made it possible for a child
to be conceived and born after death of a decedent. (e.g.,
artificial insemination of the female using the preserved
sperm of the deceased male, or in vitro insemination of a
deceased female's preserved egg with live sperm, or even
the use of both preserved egg and preserved sperm).
AB 1910 established the procedure for determining the
rights of a posthumously conceived child with respect to
distribution of property after decedent's death, and
prohibited a person with control over distribution of a
decedent's estate from making distributions once notice of
the availability of the genetic material for posthumous
conception of a child is received.
CHANGES TO EXISTING LAW
Existing law requires a posthumously conceived child or the
child's representative to prove, by clear and convincing
evidence, specified facts to establish rights to property
of a decedent whose genetic material was used to conceive
the child. One of those requirements is decedent's writing
specifying that his or her genetic material shall be used
for posthumous conception of a child. The writing must be
signed by the decedent and by at least one witness.
This bill would require that that writing be signed and
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dated by the decedent.
Existing law also requires that the writing designate a
spouse, or a domestic partner, or a person specified by the
decedent as the person to use the genetic material, and
that this person notify the person in control of the
distribution of the estate that the genetic material is
available.
This bill would remove the reference to spouse or domestic
partner, thus leaving only the person designated by the
decedent as the person to use the genetic material. The
bill also would require the designated person to provide
the notice to the person in control of the distribution of
decedent's property, as required by Probate Code 249.5.
Existing law provides that a person with control over the
distribution of decedent's property is prohibited, upon
receipt of a required written notice or actual knowledge
that decedent's genetic material was available for purposes
of posthumous conception of a child, from making any
distribution of property or paying death benefits before
two years after issuance of a certificate of decedent's
death or court order establishing the fact of decedent's
death, whichever is earlier.
Existing law also relieves a person with control over the
distribution of decedent's property from liability for
making distributions unless the person made the
distribution prior to receiving notice or acquiring actual
knowledge that decedent intended to have a posthumously
conceived child by depositing
genetic material prior to his or her death for that
purpose.
This bill would make a person who receives payment,
delivery or transfer of decedent's property based on the
rights of a posthumously conceived child liable to any
person who has a superior right by testate or intestate
succession from the decedent for the fair market value of
the property and for triple the market value if the
payment, delivery or transfer was obtained by fraud.
This bill would require an action to recover a payment,
delivery or transfer erroneously paid or transferred to be
barred three years after distribution to the holder of the
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property or three years after discovery of the fraud,
whichever is later.
This bill would allow an action involving the rights of a
posthumously conceived child to be brought in a probate
proceeding involving a will or other testamentary
instrument or in a probate proceeding involving
administration of a trust.
COMMENT
1. Need for the bill
The author states that in the last rush before the end of
session last year, a few clarifying amendments that
should have been made to AB 1910 were not made. AB 204
would make those clarifying changes to AB 1910, and also
deal with the liability of a person who wrongfully
received a distribution of decedent's property as a to
others such as posthumously conceived child who would
otherwise have received the distribution.
2. Person in control of genetic material must be
specified in writing
Under current law, the decedent's writing that specifies
his or her intent to use the preserved genetic material
for posthumous conception of a child must designate a
spouse, or a domestic partner, or any other person as the
person in control of the use of the genetic material.
This bill would delete the reference to a spouse or
domestic partner, and leave only the third choice, any
person designated by the decedent, to be in control of
the use of the genetic material. This change makes sense
and forces the decedent to specify the person by name, so
that no questions may be asked as to the validity of a
claim by a spouse or a domestic partner to be in control
of the genetic material. In other words, under existing
law, a second wife's claim to use of decedent's genetic
material may be challenged by a first wife who was the
spouse when the genetic material was collected. Similar
situations could easily be imagined, lending the statute
to extensive litigation. The deletion of the reference
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to spouse or domestic partner would therefore provide
clarity and avoid this type of litigation over a
decedent's genetic material. However, the onus would be
on the decedent to change the designated person, should
his or her relationship with the person change over time.
This bill also would require this designated person, not
the posthumously conceived child or his/her
representative, to provide the written notice to the
person in control of the distribution of the decedent's
property. This makes eminent sense, since the
posthumously conceived child may not yet have been
conceived and born, let alone pick a representative, by
the time a notice needs to be made. Under existing law,
notice must be provided to the person in control of the
distribution of decedent's property within four months of
the date of issuance of a certificate of decedent's death
or entry of judgment of the fact of decedent's death,
whichever occurs first.
3. Liability imposed on person who wrongfully received
estate distribution instead of the posthumously conceived
child or children; three-year statute of limitation
allowed
Current law relieves a person in charge of distribution
of a decedent's estate for distributions made prior to
receipt of a notice that the decedent had left genetic
material to be used for conceiving a child posthumously
or prior to having actual knowledge of that fact. The
law is silent regarding situations that could conceivably
induce the person in charge of distribution to go ahead
and make a distribution before the posthumously conceived
child or his/her representative could make a claim or
send notice of a claim. In this case, the person who
makes the distribution would be relieved of liability,
but the posthumously conceived child would have no
remedy.
According to the author, this bill intends to make the
person who receives a distribution wrongfully, in
derogation of the rights of the posthumously conceived
child (whose rights would be superior), liable for the
fair market value of the property received by that
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person.
However, the language of the bill on page 4, lines 33 and
34 reads the exact opposite: that the person who
qualified to receive a distribution as a posthumously
conceived child would be liable to another person with
superior right to the decedent's property. This reading
was not the author's intent, nor that of the probate
judges who were concerned that other distributees of
decedent's estate may maneuver to deprive the posthumous
child of his or her inheritance.
Suggested amendment : rewrite page 4, lines 33 to 36,
inclusive, as follows:
(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 by testate or intestate succession to the
payment, delivery or transfer of decedent's property.
The aggregate of the personal
The value of the property transferred would be based on
the aggregate fair market value of the property on the
date the transfer was made. This bill also would impose
triple the value if the person to whom the property was
transferred secured the transfer fraudulently.
AB 204 also would bar any action by a posthumously
conceived child or his/her representative to recover
property wrongfully distributed to another after three
years from the date the distribution was made to the
holder of the property, or three years from the date the
fraud is discovered, whichever is later.
4. Competent witness not required in all cases
AB 204 would also make some technical clean-up of the
provisions enacted by AB 1910. It would require, for
example, that the decedent's writing (of the specific
instructions regarding the use of the genetic material)
be signed - strictly an oversight from last year's
legislation.
The bill also would make the following changes:
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(a) remove the requirement that the decedent's execution
of the written
specifications regarding the use of the genetic
material be signed by a
competent witness.
This is not a strictly technical change, however.
When AB 1910 was heard last year there were questions
about ensuring that the decedent was certain about
what he or she wanted to do about the genetic
material and that he or she knew the consequences of
a posthumously conceived child. The competent witness
was the answer. This bill would delete that
requirement. Thus, any adult may, for whatever
reason, save his or her genetic material for later
use in case of an untimely death, and not tell anyone
this fact. Without a competent witness or a
testamentary instrument, however, this person's wish
to use his or her preserved genetic material to
conceive a child posthumously could die with him or
her.
However, the requirement of a competent witness is
retained by the bill, as to the notice given by the
person responsible for the use of the genetic
material that the material will not be used to
conceive a posthumous child. This would give such
persons cover, in the event genetic material is
destroyed and someone else purporting to know the
decedent's desire to have a posthumously conceived
child comes forward.
(b) allow an interested person to file a petition
either in the administration
of estates section or in the administration of
estates section of the
Probate Code, requesting a delayed distribution
of property of the
decedent or of death benefits payable by reason
of decedent's death
(e.g., life insurance policy) based on the
provisions related to a
posthumously conceived child.
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Page 8
(c) clarify that the provisions apply to a
posthumously conceived child or
children.
Support: California Judges' Association
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: AB 1910 (Harman, Ch. 775, Stats. 2004).
See Background.
Prior Vote: Asm. Jud. (Ayes 9, Noes 0) (Consent)
Asm. Flr. (Ayes 71, Noes 0) (Consent)
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