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Full Text of SB0883  100th General Assembly

SB0883sam003 100TH GENERAL ASSEMBLY

Sen. John G. Mulroe

Filed: 3/7/2017

 

 


 

 


 
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1
AMENDMENT TO SENATE BILL 883

2    AMENDMENT NO. ______. Amend Senate Bill 883 by replacing
3everything after the enacting clause with the following:
 
4    "Section 5. The Probate Act of 1975 is amended by changing
5Section 2-3 as follows:
 
6    (755 ILCS 5/2-3)  (from Ch. 110 1/2, par. 2-3)
7    Sec. 2-3. Posthumous child.
8    (a) For purposes of the descent and distribution of
9property passing by intestate succession under this Act, a A
10posthumous child of a decedent shall receive the same share of
11an estate as if the child had been born in wedlock during the
12decedent's lifetime, but only if: (1) the ; provided that such
13posthumous child is shall have been in utero at the decedent's
14death; or (2) in the case of a posthumous child not in utero at
15the decedent's death, the conditions of subsection (b) are met.
16    (b) A posthumous child of a decedent not in utero at the

 

 

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1decedent's death meets the requirements of this subsection (b)
2only if all of the following conditions apply:
3        (1) The child is born of the decedent's gametes,
4    whether those gametes form an embryo before or after the
5    decedent's death ("gametes").
6        (2) The child is born within 36 months of the death of
7    the decedent.
8        (3) The decedent had provided consent in writing to be
9    a parent of any child born of such gametes posthumously and
10    had not revoked the consent prior to death.
11        (4) The administrator of the estate receives a signed
12    and acknowledged written notice with a copy of the written
13    consent attached within 6 months of the date of issuance of
14    a certificate of the decedent's death or entry of a
15    judgment determining the fact of the decedent's death,
16    whichever event occurs first, from a person to whom such
17    consent applies that:
18            (i) the decedent's gametes exist;
19            (ii) the person has the intent to use the gametes
20        in a manner that could result in a child being born
21        within 36 months of the death of the decedent; and
22            (iii) the person has the intent to raise any such
23        child as his or her child.
24    The requirements of this subsection impose no duty on the
25administrator of an estate to provide notice of death to any
26person and apply without regard to when any person receives

 

 

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1notice of the decedent's death.
2    (c) For the purpose of determining the property rights of
3any person under any instrument, a posthumous child of a
4decedent who is in utero at the decedent's death shall be
5treated as a child of the decedent unless the intent to exclude
6the child is demonstrated by the express terms of the
7instrument by clear and convincing evidence.
8    (d) For the purpose of determining the property rights of
9any person under any instrument, a posthumous child of a
10decedent not in utero at the decedent's death shall not be
11treated as a child of the decedent unless one of the following
12conditions applies:
13        (1) the intent to include the child is demonstrated by
14    the express terms of the instrument by clear and convincing
15    evidence; or
16        (2) the fiduciary or other holder of the property
17    treated the child as a child of the decedent for purposes
18    of a division or distribution of property made prior to
19    January 1, 2018 under the instrument based on a good faith
20    interpretation of Illinois law regarding the right of the
21    child to take property under the instrument.
22    (e) For purposes of subsection (d), the use in the
23instrument of terms such as "child", "children", "grandchild",
24"grandchildren", "descendants", and "issue", whether or not
25modified by phrases such as "biological", "genetic", "born to",
26or "of the body" shall not alone constitute clear and

 

 

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1convincing evidence of an intent to include posthumous children
2not in utero at the decedent's death. An intent to exclude
3posthumous children not in utero at the decedent's death shall
4be presumed with respect to any instrument that does not
5address specifically how and when the class of posthumous
6children are to be determined with respect to each division or
7distribution provided for under the instrument as well as whose
8posthumous children are to be included and when a posthumous
9child has to be born to be considered a beneficiary with
10respect to a particular division or distribution.
11    (f) No fiduciary or other person shall be liable to any
12other person for any action taken or benefit received prior to
13the effective date of this amendatory Act of the 100th General
14Assembly that was based on a good faith interpretation of
15Illinois law regarding the right of posthumous children to take
16property by intestate succession or under an instrument. If
17after the effective date of this amendatory Act of the 100th
18General Assembly the administrator of an estate does not
19receive the written notice required by subsection (b), the
20administrator of the estate shall not be liable to any
21posthumous child not in utero at the decedent's death or any
22person claiming for or through the child.
23    (g) The changes made to subsection (a) of this Section by
24this amendatory Act of the 100th General Assembly apply to the
25estates of all decedents who die on or after January 1, 2018.
26For the purpose of determining the property rights of any

 

 

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1person under any instrument, the changes made by this
2amendatory Act of the 100th General Assembly apply to all
3instruments executed before, on, or after the effective date of
4this amendatory Act of the 100th General Assembly.
5(Source: P.A. 99-85, eff. 1-1-16.)".