BILL ANALYSIS
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|SENATE RULES COMMITTEE | AB 204|
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CONSENT
Bill No: AB 204
Author: Harman (R)
Amended: 6/22/04 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 6/14/05
AYES: Dunn, Morrow, Ackerman, Cedillo, Escutia, Figueroa,
Kuehl
ASSEMBLY FLOOR : 71-0 (Passed on Consent), 4/21/05 - See
last page for vote
SUBJECT : Decedents estates: posthumously conceived
children
SOURCE : Author
DIGEST : This bill revises 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.
ANALYSIS : 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
CONTINUED
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child. The writing must be signed by the decedent and by
at least one witness.
This bill requires that the writing be signed and 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 removes the reference to spouse or domestic
partner, thus leaving only the person designated by the
decedent as the person to use the genetic material. This
bill also requires the designated person to provide the
notice to the person in control of the distribution of
decedent's property, as required by Section 249.5 of the
Probate Code.
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/her death for that purpose.
This bill makes each person to whom payment, delivery, or
transfer of the decedent's property is made, a person who
pursuant to Section 2495 of the Probate Code, is personally
liable to a superior right to the payment, delivery, or
transfer of the decedent's property. The aggregate of the
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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.
In addition to any other liability a person may have, 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.
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 may not be tolled for any reason.
Prior legislation . AB 1910 (Harman), Chapter 775, Statutes
of 2004, passed the Senate Floor with a vote of 36-0
(Consent) on 8/18/04.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 6/22/05)
California Judges Association
ARGUMENTS IN SUPPORT : The author's offices 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 makes those clarifying changes to AB
1910, and also deals with the liability of a person who
wrongfully received a distribution of decedent's property
as to others such as a posthumously conceived child who
would otherwise have received the distribution.
ASSEMBLY FLOOR :
AYES: Aghazarian, Arambula, Baca, Benoit, Berg, Bermudez,
Blakeslee, Bogh, Calderon, Canciamilla, Chan, Chavez,
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Chu, Cogdill, Cohn, Coto, Daucher, De La Torre, DeVore,
Dymally, Emmerson, Evans, Frommer, Garcia, Goldberg,
Hancock, Harman, Haynes, Jerome Horton, Shirley Horton,
Houston, Huff, Jones, Karnette, Keene, Klehs, Koretz, La
Malfa, Laird, Leno, Leslie, Levine, Lieber, Liu,
Matthews, Maze, McCarthy, Mountjoy, Mullin, Nakanishi,
Nava, Negrete McLeod, Niello, Parra, Plescia, Richman,
Ridley-Thomas, Sharon Runner, Ruskin, Saldana, Salinas,
Spitzer, Strickland, Torrico, Tran, Umberg, Vargas,
Villines, Wolk, Wyland, Yee
NO VOTE RECORDED: Bass, Gordon, La Suer, Montanez, Nation,
Oropeza, Pavley, Walters, Nunez
RJG:mel 6/22/05 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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