House File 2453      



                                    HOUSE FILE       
                                    BY  COMMITTEE ON JUDICIARY

                                    (SUCCESSOR TO HSB 639)

                                         A BILL FOR

     1 An Act relating to the status of posthumously conceived and
     2    born children in the context of legitimacy, inheritance,
     3    rights to claim an after=born child's share, and other
     4    rights.
     5 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF IOWA:
       TLSB 6142HV (2) 83
       pf/nh

PAG LIN



  1  1    Section 1.  Section 252A.3, Code 2009, is amended by adding
  1  2 the following new subsections:
  1  3    NEW SUBSECTION.  4A.  a.  A child born of parents who at any
  1  4 time prior to the birth of the child entered into a civil or
  1  5 religious marriage ceremony is deemed the legitimate child of
  1  6 both parents, regardless of the validity of such marriage, if
  1  7 all of the following conditions are met:
  1  8    (1)  The marriage was not thereafter dissolved prior to the
  1  9 death of either parent.
  1 10    (2)  The child was conceived and born after the death of
  1 11 a parent or was born as the result of the implantation of an
  1 12 embryo after the death of a parent.
  1 13    (3)  A genetic parent=child relationship between the child
  1 14 and the deceased parent is established.
  1 15    (4)  The deceased parent, in a signed writing, authorized the
  1 16 other parent to use the deceased parent's genetic material to
  1 17 initiate the posthumous procedure that resulted in the child's
  1 18 birth, or the deceased parent, by a specific reference to the
  1 19 genetic material, bequeathed the genetic material to the other
  1 20 parent in a valid will.
  1 21    (5)  The child is born within two years of the death of the
  1 22 deceased parent.
  1 23    b.  For the purposes of this subsection, "genetic material"
  1 24 means sperm, eggs, or embryos.
  1 25    NEW SUBSECTION.  5A.  a.  A child born of parents who at
  1 26 any time prior to the birth of the child held themselves out
  1 27 as spouses by virtue of a common law marriage is deemed the
  1 28 legitimate child of both parents, if all of the following
  1 29 conditions are met:
  1 30    (1)  The marriage was not thereafter dissolved prior to the
  1 31 death of either parent.
  1 32    (2)  The child was conceived and born after the death of
  1 33 a parent or was born as the result of the implantation of an
  1 34 embryo after the death of a parent.
  1 35    (3)  A genetic parent=child relationship between the child
  2  1 and the deceased parent is established.
  2  2    (4)  The deceased parent, in a signed writing, authorized the
  2  3 other parent to use the deceased parent's genetic material to
  2  4 initiate the posthumous procedure that resulted in the  child's
  2  5 birth, or the deceased parent, by a specific reference to the
  2  6 genetic material, bequeathed the genetic material to the other
  2  7 parent in a valid will.
  2  8    (5)  The child is born within two years of the death of the
  2  9 deceased parent.
  2 10    b.  For purposes of this subsection, "genetic material" means
  2 11 sperm, eggs, or embryos.
  2 12    Sec. 2.  NEW SECTION.  633.220A  Posthumous child.
  2 13    1.  For the purposes of rules relating to intestate
  2 14 succession, a child of an intestate conceived and born after
  2 15 the intestate's death or born as the result of the implantation
  2 16 of an embryo after the death of the intestate is deemed a child
  2 17 of the intestate as if the child had been born during the
  2 18 lifetime of the intestate and had survived the intestate, if
  2 19 all of the following conditions are met:
  2 20    a.  A genetic parent=child relationship between the child and
  2 21 the intestate is established.
  2 22    b.  The intestate, in a signed writing, authorized the
  2 23 intestate's surviving  spouse to use the deceased parent's
  2 24 genetic material to initiate the posthumous procedure that
  2 25 resulted in the  child's birth.
  2 26    c.  The child is born within two years of the death of the
  2 27 intestate.
  2 28    2.  Any heir of the intestate whose interest in the
  2 29 intestate's estate would be reduced by the birth of a  child
  2 30 born as provided in subsection 1 shall have one year from the
  2 31 birth of the child within which to bring an action challenging
  2 32 the child's right to inherit under this chapter.
  2 33    3.  For the purposes of this section, "genetic material"
  2 34 means sperm, eggs, or embryos.
  2 35    Sec. 3.  Section 633.267, Code 2009, is amended to read as
  3  1 follows:
  3  2    633.267  Children born or adopted after execution of will.
  3  3    1.  If a testator fails to provide in the testator's will
  3  4 for any child of the testator's children testator born to or
  3  5 adopted by the testator after the execution of the testator's
  3  6 last will, such child, whether born before or after the
  3  7 testator's death, shall receive a share in the estate of the
  3  8 testator equal in value to that which the child would have
  3  9 received under section 633.211, 633.212, or 633.219, after
  3 10 taking into account the spouse's intestate share under section
  3 11 633.211 or section 633.212, whichever section or sections are
  3 12 applicable, if the testator had died intestate, unless it
  3 13 appears from the will that such omission was intentional.
  3 14    2.  a.  For the purposes of this section, a child born   after
  3 15 the testator's death includes a child of the testator conceived
  3 16 and born after the testator's death, or a child born as the
  3 17 result of the implantation of  an embryo after the testator's
  3 18 death, if all of the following conditions are met:
  3 19    (1)  A genetic parent=child relationship between the child
  3 20 and the testator is established. 
  3 21    (2)  The testator, in a signed writing,  authorized the
  3 22 testator's surviving spouse to use the deceased parent's
  3 23 genetic material to initiate the posthumous procedure that
  3 24 resulted in the child's birth or the testator by specific
  3 25 reference to the genetic material, bequeathed the genetic
  3 26 material to the other parent in a valid will.
  3 27    (3)  The child is born within two years of the death of the
  3 28 testator. 
  3 29    b.  Any child of the testator whose share of the estate
  3 30 would be reduced by the birth of a child born as provided in
  3 31 paragraph "a" shall have one year from the birth of the child
  3 32 within which to bring an action challenging the child's right
  3 33 to a share of the estate under this section.
  3 34    c.  For the purposes of this subsection, "genetic
  3 35 material" means sperm, eggs, or embryos.
  4  1    Sec. 4.  Section 633.477, Code 2009, is amended by adding the
  4  2 following new subsection:
  4  3    NEW SUBSECTION.  13.  A statement as to whether the
  4  4 decedent left any genetic material, and if the decedent left
  4  5 genetic material, if the personal representative has reserved
  4  6 sufficient estate assets to fund the distribution to which
  4  7 posthumous heirs, if any, would be entitled to receive; that
  4  8 the personal representative will wait until two years after the
  4  9 decedent's date of death to make final distributions; and that
  4 10 the personal representative will submit a supplemental report
  4 11 after such final distributions have been made.
  4 12    Sec. 5.  Section 633A.3106, Code 2009, is amended to read as
  4 13 follows:
  4 14    633A.3106  Children born or adopted after execution of a
  4 15 revocable trust.
  4 16    1.  When a settlor fails to provide in a revocable trust
  4 17 for any of the settlor's children born to or adopted by the
  4 18 settlor after the execution of the trust or the last amendment
  4 19 to the trust, such child, whether born before or after the
  4 20 settlor's death, shall receive a share of the trust equal in
  4 21 value to that which the child would have received under section
  4 22 633.211, 633.212, or 633.219, after taking into account the
  4 23 spouse's intestate share under section 633.211 or section
  4 24 633.212, whichever is applicable, as if the settlor had died
  4 25 intestate, unless it appears from the terms of the trust or
  4 26 decedent's will that such omission was intentional.
  4 27    2.  For the purposes of this section, a child born after the
  4 28 death of the settlor who would have been entitled to a share
  4 29 of the settlor's probate estate pursuant to section 633.267
  4 30 shall be treated as a child of the settlor for purposes of this
  4 31 section.
  4 32                           EXPLANATION
  4 33    This bill relates to the status of posthumously conceived
  4 34 and born children in the context of legitimacy, inheritance,
  4 35 rights to claim an after=born child's share, and other rights.
  5  1 The bill provides that if a  child is born of parents who
  5  2 entered into a civil or religious  marriage ceremony or a common
  5  3 law marriage at any time prior to the birth of the child,
  5  4 the child is deemed the legitimate child of both parents,
  5  5 regardless of the validity of such marriage, if the marriage
  5  6 was not thereafter dissolved prior to the death of either
  5  7 parent, if the child was conceived and born after the death
  5  8 of a parent, and if these conditions are met:  a genetic
  5  9 parent=child relationship between the child and the deceased
  5 10 parent is established; the deceased parent authorized the other
  5 11 parent, in a written instrument or by specific bequest in a
  5 12 valid will, to use the deceased parent's genetic material to
  5 13 initiate the posthumous procedure that resulted in the child's
  5 14 birth; and the child is born within two years of the death of
  5 15 the deceased parent.
  5 16    In the context of intestate succession, the bill provides
  5 17 that a child of an intestate conceived and born after the
  5 18 intestate's death is the intestate's child just as if the
  5 19 child had been born in the lifetime of the intestate and had
  5 20 survived the intestate if three conditions are met:  a genetic
  5 21 parent=child relationship  between the child and the intestate
  5 22 is established; the intestate authorized the surviving spouse,
  5 23 in a signed writing, to use the deceased parent's genetic
  5 24 material to initiate the posthumous procedure that resulted in
  5 25 the child's birth; and the child is born within two years of
  5 26 the death of the intestate.  Additionally, the bill provides
  5 27 that any heir of the intestate  whose interest in the estate
  5 28 of the intestate will be reduced by the birth of a child born
  5 29 posthumously, shall have one year from the birth of the child
  5 30 within which to bring an action to challenge the child's right
  5 31 to a share of the estate.
  5 32    In the context of testate succession, the bill provides that
  5 33 a child born after the testator's death includes a child of
  5 34 the testator born after the testator's death, if the following
  5 35 conditions are all met:  a genetic parent=child relationship
  6  1 between the child and the testator is established; the testator
  6  2 authorized the surviving spouse, in a signed writing, to use
  6  3 the testator's genetic material to initiate the posthumous
  6  4 procedure that resulted in the child's birth; and the child
  6  5 is born within two years of the death of the testator.
  6  6 Additionally, the bill provides that any child of the testator
  6  7 whose share of the estate would be reduced by the birth of
  6  8 a child born posthumously shall have one year from the birth
  6  9 of the child within which to bring an action challenging the
  6 10 child's right to a share of the estate. Such after=born child
  6 11 would receive a share in the estate of the testator equal in
  6 12 value to that which the child would have received under the
  6 13 applicable Code sections relating to intestate succession,
  6 14 unless it appears from the will that omission from the will
  6 15 relative to the child was intentional. In the context of a
  6 16 revocable trust, the bill provides that a child born after
  6 17 death of the settlor who would have been entitled to a share of
  6 18 the settlor's probate estate shall be treated as a child of the
  6 19 settlor.
       LSB 6142HV (2) 83
       pf/nh