BILL ANALYSIS
AB 204
Page 1
Date of Hearing: July 7, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 204 (Harman) - As Amended: June 22, 2005
FOR CONCURRENCE
SUBJECT : Decedents' Estates: Posthumously Conceived Children
KEY ISSUE : SHOULD a person who inherits property that
rightfully belongs to a posthumously conceived child be LIABle
to the POSTHUMOUSLY conceived child for the value of the
property received?
Synopsis
This non-controversial bill, affecting the inheritance rights of
posthumously conceived children, was originally heard by this
Committee on April 12, 2005 and passed by consent. It is now
back for a concurrence hearing based on amendments taken in the
Senate. Those amendments, among other things, impose liability
on any person who receives a decedent's property in place of a
posthumously conceived child with superior rights. They
received the support of the Senate Judiciary Committee. The
author states that this bill is necessary to further explain the
intent and purpose of the inheritance requirements for
posthumously conceived children and to ensure that a person who
receives a distribution wrongfully, in derogation of the
superior rights of a posthumously conceived child, is liable to
that child for the fair market value of the property received.
The bill is supported by the California Judges Association.
There continues to be no opposition.
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.
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3)Requires that the decedent's written specifications
specifically designate the person in control of the use of the
decedent's genetic material and requires that such person
provide required written notice regarding availability of the
genetic material.
4)Makes a person, to whom payment, delivery, or transfer of the
decedent's property is made, personally liable to a
posthumously conceived child with a superior right by testate
or intestate succession to the property for the fair market
value of the 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
distribution to the holder of the property or three years
after discovery of the fraud, whichever is later.
6)Clarifies that the provisions apply to a posthumously
conceived child or children.
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. (Probate Code Section 249.5. Unless stated
otherwise, all further references are to the Probate Code.)
2)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. (Section 249.5.)
3)Provides that a person with control over the distribution of
decedent's property is prohibited, upon receipt of a required
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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. (Section
249.6.)
4)Relieves a person with control over the distribution of
decedent's property from liability for making distributions if
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. (Section 249.6)
5)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.
(Section 249.7.)
FISCAL EFFECT : As currently in print, this bill is keyed
non-fiscal.
COMMENTS : This bill, affecting the inheritance rights of
posthumously conceived children, was originally heard by this
Committee on April 12, 2005 and passed by consent. It is now
back for a concurrence hearing based on amendments taken in the
Senate. Those amendments, among other things, impose liability
on any person who receives a decedent's property in place of a
posthumously conceived child with superior rights.
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
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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 makes those
changes, further explaining the intent and purpose of the
requirements for inheritance set forth in AB 1910, as discussed
below.
Current law relieves a person in charge of distribution of a
decedent's estate from liability 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 the liability of the person who received distribution.
In this case, the person who makes the distribution would be
relieved of liability, but the posthumously conceived child
would have no remedy against the person who received the
distribution.
This bill seeks to make a 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 liability for
triple the value if the person to whom the property was
transferred secured the transfer fraudulently. 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.
AB 204 would also clean-up other provisions enacted by AB 1910.
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, domestic partner,
or any other person as the person in control of the use of the
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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. The
deletion of the reference to spouse or domestic partner would
therefore provide clarity and minimize litigation over a
decedent's genetic material.
The bill also would 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. However, a
competent witness would still be required for the notice from
the person responsible for the use of the genetic material that
the material will not be used to conceive a posthumous child.
This would provide 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
later.
Prior Legislation : AB 1910 (Harman, Ch. 775, Stats. 2004)
established the procedure for determining the rights of a
posthumously conceived child with respect to distribution of
property after the decedent's death.
REGISTERED SUPPORT / OPPOSITION :
Support
California Judges' Association
Opposition
None on file.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334