BILL ANALYSIS
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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|COMMITTEE VOTE: |8-0 |(July 7, 2005) |RECOMMENDATION: |Concur |
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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)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
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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.
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)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.
3)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.
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.
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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.
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 conception.
FISCAL EFFECT : None
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 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
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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 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
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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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916) 319-2334
FN: 0011565