Full Text of SB0883 100th General Assembly
SB0883eng 100TH GENERAL ASSEMBLY |
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| 1 | | AN ACT concerning civil law.
| 2 | | Be it enacted by the People of the State of Illinois,
| 3 | | represented in the General Assembly:
| 4 | | Section 5. The Probate Act of 1975 is amended by changing | 5 | | Section 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 | 9 | | property passing by intestate succession under this Act, a A | 10 | | posthumous child of a decedent shall
receive the same share of | 11 | | an estate as if the child had been born in wedlock during the
| 12 | | decedent's lifetime , but only if: (1) the ; provided that such | 13 | | posthumous child is shall have been in utero at the decedent's | 14 | | death ; or (2) in the case of a posthumous child not in utero at | 15 | | the decedent's death, the conditions of subsection (b) are met .
| 16 | | (b) A posthumous child of a decedent not in utero at the | 17 | | decedent's death meets the requirements of this subsection (b) | 18 | | only if all of the following conditions apply: | 19 | | (1) The child is born of the decedent's gametes, | 20 | | whether those gametes form an embryo before or after the | 21 | | decedent's death ("gametes"). | 22 | | (2) The child is born within 36 months of the death of | 23 | | the decedent. |
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| 1 | | (3) The decedent had provided consent in writing to be | 2 | | a parent of any child born of such gametes posthumously and | 3 | | had not revoked the consent prior to death. | 4 | | (4) The administrator of the estate receives a signed | 5 | | and acknowledged written notice with a copy of the written | 6 | | consent attached within 6 months of the date of issuance of | 7 | | a certificate of the decedent's death or entry of a | 8 | | judgment determining the fact of the decedent's death, | 9 | | whichever event occurs first, from a person to whom such | 10 | | consent applies that: | 11 | | (i) the decedent's gametes exist; | 12 | | (ii) the person has the intent to use the gametes | 13 | | in a manner that could result in a child being born | 14 | | within 36 months of the death of the decedent; and | 15 | | (iii) the person has the intent to raise any such | 16 | | child as his or her child. | 17 | | The requirements of this subsection impose no duty on the | 18 | | administrator of an estate to provide notice of death to any | 19 | | person and apply without regard to when any person receives | 20 | | notice of the decedent's death. | 21 | | (c) For the purpose of determining the property rights of | 22 | | any person under any instrument, a posthumous child of a | 23 | | decedent who is in utero at the decedent's death shall be | 24 | | treated as a child of the decedent unless the intent to exclude | 25 | | the child is demonstrated by the express terms of the | 26 | | instrument by clear and convincing evidence. |
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| 1 | | (d) For the purpose of determining the property rights of | 2 | | any person under any instrument, a posthumous child of a | 3 | | decedent not in utero at the decedent's death shall not be | 4 | | treated as a child of the decedent unless one of the following | 5 | | conditions applies: | 6 | | (1) the intent to include the child is demonstrated by | 7 | | the express terms of the instrument by clear and convincing | 8 | | evidence; or | 9 | | (2) the fiduciary or other holder of the property | 10 | | treated the child as a child of the decedent for purposes | 11 | | of a division or distribution of property made prior to | 12 | | January 1, 2018 under the instrument based on a good faith | 13 | | interpretation of Illinois law regarding the right of the | 14 | | child to take property under the instrument. | 15 | | (e) For purposes of subsection (d), the use in the | 16 | | instrument of terms such as "child", "children", "grandchild", | 17 | | "grandchildren", "descendants", and "issue", whether or not | 18 | | modified by phrases such as "biological", "genetic", "born to", | 19 | | or "of the body" shall not alone constitute clear and | 20 | | convincing evidence of an intent to include posthumous children | 21 | | not in utero at the decedent's death. An intent to exclude | 22 | | posthumous children not in utero at the decedent's death shall | 23 | | be presumed with respect to any instrument that does not | 24 | | address specifically how and when the class of posthumous | 25 | | children are to be determined with respect to each division or | 26 | | distribution provided for under the instrument as well as whose |
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| 1 | | posthumous children are to be included and when a posthumous | 2 | | child has to be born to be considered a beneficiary with | 3 | | respect to a particular division or distribution. | 4 | | (f) No fiduciary or other person shall be liable to any | 5 | | other person for any action taken or benefit received prior to | 6 | | the effective date of this amendatory Act of the 100th General | 7 | | Assembly that was based on a good faith interpretation of | 8 | | Illinois law regarding the right of posthumous children to take | 9 | | property by intestate succession or under an instrument. If | 10 | | after the effective date of this amendatory Act of the 100th | 11 | | General Assembly the administrator of an estate does not | 12 | | receive the written notice required by subsection (b), the | 13 | | administrator of the estate shall not be liable to any | 14 | | posthumous child not in utero at the decedent's death or any | 15 | | person claiming for or through the child. | 16 | | (g) The changes made to subsection (a) of this Section by | 17 | | this amendatory Act of the 100th General Assembly apply to the | 18 | | estates of all decedents who die on or after January 1, 2018. | 19 | | For the purpose of determining the property rights of any | 20 | | person under any instrument, the changes made by this | 21 | | amendatory Act of the 100th General Assembly apply to all | 22 | | instruments executed before, on, or after the effective date of | 23 | | this amendatory Act of the 100th General Assembly. | 24 | | (Source: P.A. 99-85, eff. 1-1-16 .)
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