BILL ANALYSIS
Subject matter was not heard in Assembly policy committee this
legislative
Session, should be noted in the last paragraph of the background
section of the
CSA analysis. Language will vary depending on the circumstance.
AB 204
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 204 (Harman)
As Amended June 22, 2005
Majority vote
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|ASSEMBLY: |71-0 |(April 21, |SENATE: |33-0 |(July 1, 2005) |
| | |2005) | | | |
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Original Committee Reference: INS.
SUMMARY : Clarifies the conditions for distribution of property
after the decedent's death for a posthumously conceived child.
Specifically, this bill :
1)Requires the decedent's written specifications regarding the
use of his or her genetic material posthumously to be dated,
as well as signed.
2)Deletes the requirement that the decedent's written
specifications be signed by at least one competent witness.
3)Deletes the reference to the decedent's designation of his or
her spouse or domestic partner and substitutes 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)Makes each person to whom payment, delivery, or transfer of
the decedent's property is made, personally liable to a person
who, pursuant to Probate Code Section 249.5, has a superior
right by testate or intestate succession to the payment or
property for the fair market value of the payment or property
at the time of transfer, and for triple the market value if
the payment, delivery or transfer was obtained by fraud.
5)Requires an action to recover a payment, delivery or transfer
erroneously paid or transferred to be barred three years after
Subject matter was not heard in Assembly policy committee this
legislative
Session, should be noted in the last paragraph of the background
section of the
CSA analysis. Language will vary depending on the circumstance.
AB 204
Page 2
distribution to the holder of the property or three years
after discovery of the fraud, whichever is later.
6)Allows 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.
7)Clarifies that the provisions apply to a posthumously
conceived child or children.
The Senate amendments make further clarifications and impose
liability to any person who receives a distribution of the
decedent's property wrongfully.
EXISTING LAW :
1)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 including 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.
2)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 PASSED BY THE ASSEMBLY , this bill required that the
decedent's spouse or registered domestic partner or some other
designated person, rather than the child or the child's
representative, would give written notice that the decedent's
genetic material was available for the purpose of posthumous
Subject matter was not heard in Assembly policy committee this
legislative
Session, should be noted in the last paragraph of the background
section of the
CSA analysis. Language will vary depending on the circumstance.
AB 204
Page 3
conception.
FISCAL EFFECT : None
COMMENTS : Last year, AB 1910 (Harman), Chapter 775, established
the procedure for determining the rights of a posthumously
conceived child with respect to distribution of property after
the decedent's death. It required the posthumously conceived
child or the child's representative to prove, by clear and
convincing evidence, specified facts to establish those rights.
It further prohibited a person with control over the
distribution of decedent's property, 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. That bill relieved
persons with control over the distribution of decedent's
property from liability for making distributions unless the
person receives a required written notice or has actual
knowledge that decedent intended to have a posthumously
conceived child by depositing genetic material prior to his or
her death for that purpose.
Due to time constraints last year, the author was unable to make
clarifying additions to the bill. This bill, AB 204, will make
these changes, help further explain the intent and purpose of
the requirements for inheritance set forth in AB 1910, and also
deal with the liability of a person who wrongfully received a
distribution of decedent's property.
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
Subject matter was not heard in Assembly policy committee this
legislative
Session, should be noted in the last paragraph of the background
section of the
CSA analysis. Language will vary depending on the circumstance.
AB 204
Page 4
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 person. 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. Furthermore,
the bill would bar any action by a posthumously conceived child
or his/her representative to recover property wrongfully
distributed 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.
Analysis Prepared by : Cindy Fischer / JUD. / (916) 319-2334
FN: 0011258