Full Text of SB0883 100th General Assembly
SB0883sam001 100TH GENERAL ASSEMBLY | Sen. John G. Mulroe Filed: 3/6/2017
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| 1 | | AMENDMENT TO SENATE BILL 883
| 2 | | AMENDMENT NO. ______. Amend Senate Bill 883 on page 6, by | 3 | | replacing everything after the enacting clause with the | 4 | | following:
| 5 | | "Section 5. The Probate Act of 1975 is amended by changing | 6 | | Sections 2-2 and 2-3 as follows:
| 7 | | (755 ILCS 5/2-2) (from Ch. 110 1/2, par. 2-2)
| 8 | | Sec. 2-2. Children born out of wedlock. The intestate real | 9 | | and personal estate of
a resident decedent who was a child born | 10 | | out of wedlock at the time of death and the
intestate real | 11 | | estate in this State of a nonresident decedent who was a child | 12 | | born out of wedlock at the time of death, after all just claims | 13 | | against his estate are
fully paid, descends and shall be | 14 | | distributed as provided in Section 2-1,
subject to Section | 15 | | 2-6.5 of this Act, if both parents are eligible parents. As
| 16 | | used in this Section, "eligible parent" means a parent of the |
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| 1 | | decedent who,
during the decedent's lifetime, acknowledged the | 2 | | decedent as the parent's
child, established a parental | 3 | | relationship with the decedent, and supported the
decedent as | 4 | | the parent's child. "Eligible parents" who are in arrears of in
| 5 | | excess of one year's child support obligations shall not | 6 | | receive any property
benefit or other interest of the decedent | 7 | | unless and until a court of competent
jurisdiction makes a | 8 | | determination as to the effect on the deceased of the
arrearage | 9 | | and allows a reduced benefit. In no event shall the reduction | 10 | | of
the benefit or other interest be less than the amount of | 11 | | child support owed for
the support of the decedent at the time | 12 | | of death. The court's considerations
shall include but are not | 13 | | limited to the considerations in subsections (1)
through (3) of | 14 | | Section 2-6.5 of this Act.
| 15 | | If neither parent is an eligible parent, the intestate real
| 16 | | and personal estate of a resident decedent who was a child born | 17 | | out of wedlock at the time of
death and the intestate real | 18 | | estate in this State of a nonresident decedent who
was a child | 19 | | born out of wedlock at the time of death, after all just claims | 20 | | against his or her
estate are fully paid, descends and shall be | 21 | | distributed as provided in
Section 2-1, but the parents of the | 22 | | decedent shall be treated as having
predeceased the decedent.
| 23 | | If only one parent is an eligible parent, the intestate | 24 | | real and personal
estate of a resident decedent who was a child | 25 | | born out of wedlock at the time of death and the
intestate real | 26 | | estate in this State of a nonresident decedent who was a child |
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| 1 | | born out of wedlock at the time of death, after all just claims | 2 | | against his or her
estate are fully paid, subject to Section | 3 | | 2-6.5 of this Act, descends and shall
be distributed as | 4 | | follows:
| 5 | | (a) If there is a surviving spouse and also a descendant of | 6 | | the
decedent: 1/2 of the entire estate to the surviving spouse | 7 | | and 1/2 to
the decedent's descendants per stirpes.
| 8 | | (b) If there is no surviving spouse but a descendant of the
| 9 | | decedent: the entire estate to the decedent's descendants per | 10 | | stirpes.
| 11 | | (c) If there is a surviving spouse but no descendant of the
| 12 | | decedent: the entire estate to the surviving spouse.
| 13 | | (d) If there is no surviving spouse or descendant but the | 14 | | eligible parent or
a descendant of the eligible parent of the | 15 | | decedent: the entire estate to the
eligible parent and the | 16 | | eligible parent's descendants, allowing 1/2 to the
eligible | 17 | | parent and 1/2 to the eligible parent's descendants per | 18 | | stirpes.
| 19 | | (e) If there is no surviving spouse, descendant, eligible | 20 | | parent, or
descendant of the eligible parent of the decedent, | 21 | | but a grandparent on the
eligible parent's side of the family | 22 | | or descendant of such grandparent of the
decedent: the entire | 23 | | estate to the decedent's grandparents on the eligible
parent's | 24 | | side of the family in equal parts, or to the survivor of them, | 25 | | or if
there is none surviving, to their descendants per | 26 | | stirpes.
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| 1 | | (f) If there is no surviving spouse, descendant, eligible | 2 | | parent, descendant
of the eligible parent, grandparent on the | 3 | | eligible parent's side of the
family, or descendant of such | 4 | | grandparent of the decedent: the entire estate
to the | 5 | | decedent's great-grandparents on the eligible parent's side of | 6 | | the
family in equal parts or to the survivor of them, or if | 7 | | there is none
surviving, to their descendants per stirpes.
| 8 | | (g) If there is no surviving spouse, descendant, eligible | 9 | | parent, descendant
of the eligible parent, grandparent on the
| 10 | | eligible parent's side of the family, descendant of such
| 11 | | grandparent, great-grandparent on the eligible parent's side | 12 | | of
the family, or descendant of such great-grandparent of the | 13 | | decedent: the
entire estate in equal parts to the nearest | 14 | | kindred of the eligible parent of
the decedent in equal degree | 15 | | (computing by the rules of the civil law) and
without | 16 | | representation.
| 17 | | (h) If there is no surviving spouse, descendant, or | 18 | | eligible parent of the
decedent and no known kindred of the | 19 | | eligible parent of the decedent: the real
estate escheats to
| 20 | | the county in which it is located; the personal estate | 21 | | physically
located within this State and the personal estate | 22 | | physically located or
held outside this State which is the | 23 | | subject of ancillary administration
within this State escheats | 24 | | to the county of which the decedent was a
resident or, if the | 25 | | decedent was not a resident of this State, to the
county in | 26 | | which it is located; all other personal property of the
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| 1 | | decedent of every class and character, wherever situate, or the | 2 | | proceeds
thereof, shall escheat to this State and be delivered | 3 | | to the State
Treasurer of this State pursuant to the Uniform | 4 | | Disposition
of Unclaimed Property Act.
| 5 | | For purposes of inheritance, the changes made by this | 6 | | amendatory Act of
1998 apply to all decedents who die on or | 7 | | after the effective date of this
amendatory Act of 1998. For | 8 | | the purpose of determining the property rights of
any person | 9 | | under any instrument, the changes made by this amendatory Act | 10 | | of
1998 apply to all instruments executed on or after the | 11 | | effective date of this
amendatory Act of 1998.
| 12 | | A child born out of wedlock is heir of his mother and of | 13 | | any maternal
ancestor and of any person from whom his mother | 14 | | might have inherited, if
living; and the descendants of a | 15 | | person who was a child born out of wedlock shall represent
such | 16 | | person and take by descent any estate which the parent would | 17 | | have
taken, if living. If a decedent has acknowledged paternity | 18 | | of a child born out of wedlock , or if during his lifetime or | 19 | | after his death a
decedent has been adjudged to be the father | 20 | | of a child born out of wedlock, or if a decedent is a parent of | 21 | | a child born out of wedlock as provided in Section 2-3 of this | 22 | | Act,
that person is heir of his father and of any paternal | 23 | | ancestor and of
any person from whom his father might have | 24 | | inherited, if living; and
the descendants of a person who was a | 25 | | child born out of wedlock shall represent that person
and take | 26 | | by descent any estate which the parent would have taken, if
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| 1 | | living. If during his lifetime the decedent was adjudged to be | 2 | | the
father of a child born out of wedlock by a court of | 3 | | competent jurisdiction,
an authenticated copy of the judgment | 4 | | is sufficient proof of the
paternity; but in all other cases | 5 | | paternity must be proved by clear and
convincing evidence. A | 6 | | person who was a child born out of wedlock whose parents
| 7 | | intermarry and who is acknowledged by the father as the | 8 | | father's child
is a lawful child of the father.
After a child | 9 | | born out of wedlock is adopted, that person's relationship to | 10 | | his or
her adopting and natural parents shall be governed by | 11 | | Section 2-4 of this
Act. For purposes of inheritance, the | 12 | | changes made by this amendatory Act of
1997 apply to all | 13 | | decedents who die on or after January 1, 1998. For the
purpose | 14 | | of determining the property rights of any person under any | 15 | | instrument,
the changes made by this amendatory Act of 1997 | 16 | | apply to all instruments
executed on or after January 1, 1998.
| 17 | | (Source: P.A. 94-229, eff. 1-1-06.)
| 18 | | (755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
| 19 | | Sec. 2-3. Posthumous child. | 20 | | (a) For purposes of the descent and distribution of | 21 | | property passing by intestate succession under this Act, a A | 22 | | posthumous child of a decedent shall
receive the same share of | 23 | | an estate as if the child had been born in in wedlock during | 24 | | the
decedent's lifetime , but only if: (1) the ; provided that | 25 | | such posthumous child is shall have been in utero at the |
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| 1 | | decedent's death ; or (2) in the case of a posthumous child not | 2 | | in utero at the decedent's death, the conditions of subsection | 3 | | (b) are met .
| 4 | | (b) A posthumous child of a decedent not in utero at the | 5 | | decedent's death meets the requirements of this subsection (b) | 6 | | only if all of the following conditions apply: | 7 | | (1) The child is born of the decedent's gametes, | 8 | | whether those gametes form an embryo before or after the | 9 | | decedent's death ("gametes"). | 10 | | (2) The child is born within 36 months of the death of | 11 | | the decedent. | 12 | | (3) The decedent had provided consent in writing to be | 13 | | a parent of any child born of such gametes posthumously and | 14 | | had not revoked the consent prior to death. | 15 | | (4) The administrator of the estate receives a signed | 16 | | and acknowledged written notice with a copy of the written | 17 | | consent attached within 6 months of the date of issuance of | 18 | | a certificate of the decedent's death or entry of a | 19 | | judgment determining the fact of the decedent's death, | 20 | | whichever event occurs first, from a person to whom such | 21 | | consent applies that: | 22 | | (i) the decedent's gametes exist; | 23 | | (ii) the person has the intent to use the gametes | 24 | | in a manner that could result in a child being born | 25 | | within 36 months of the death of the decedent; and | 26 | | (iii) the person has the intent to raise any such |
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| 1 | | child as his or her child. | 2 | | The requirements of this subsection impose no duty on the | 3 | | administrator of an estate to provide notice of death to any | 4 | | person and apply without regard to when any person receives | 5 | | notice of the decedent's death. | 6 | | (c) For the purpose of determining the property rights of | 7 | | any person under any instrument, a posthumous child of a | 8 | | decedent who is in utero at the decedent's death shall be | 9 | | treated as a child of the decedent unless the intent to exclude | 10 | | the child is demonstrated by the express terms of the | 11 | | instrument by clear and convincing evidence. | 12 | | (d) For the purpose of determining the property rights of | 13 | | any person under any instrument, a posthumous child of a | 14 | | decedent not in utero at the decedent's death shall not be | 15 | | treated as a child of the decedent unless one of the following | 16 | | conditions applies: | 17 | | (1) the intent to include the child is demonstrated by | 18 | | the express terms of the instrument by clear and convincing | 19 | | evidence; or | 20 | | (2) the fiduciary or other holder of the property | 21 | | treated the child as a child of the decedent for purposes | 22 | | of a division or distribution of property made prior to | 23 | | January 1, 2018 under the instrument based on a good faith | 24 | | interpretation of Illinois law regarding the right of the | 25 | | child to take property under the instrument. | 26 | | (e) For purposes of subsection (d), the use in the |
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| 1 | | instrument of terms such as "child", "children", "grandchild", | 2 | | "grandchildren", "descendants", and "issue", whether or not | 3 | | modified by phrases such as "biological", "genetic", "born to", | 4 | | or "of the body" shall not alone constitute clear and | 5 | | convincing evidence of an intent to include posthumous children | 6 | | not in utero at the decedent's death. An intent to exclude | 7 | | posthumous children not in utero at the decedent's death shall | 8 | | be presumed with respect to any instrument that does not | 9 | | address specifically how and when the class of posthumous | 10 | | children are to be determined with respect to each division or | 11 | | distribution provided for under the instrument as well as whose | 12 | | posthumous children are to be included and when a posthumous | 13 | | child has to be born to be considered a beneficiary with | 14 | | respect to a particular division or distribution. | 15 | | (f) No fiduciary or other person shall be liable to any | 16 | | other person for any action taken or benefit received prior to | 17 | | the effective date of this amendatory Act of the 100th General | 18 | | Assembly that was based on a good faith interpretation of | 19 | | Illinois law regarding the right of posthumous children to take | 20 | | property by intestate succession or under an instrument. If | 21 | | after the effective date of this amendatory Act of the 100th | 22 | | General Assembly the administrator of an estate does not | 23 | | receive the written notice required by subsection (b), the | 24 | | administrator of the estate shall not be liable to any | 25 | | posthumous child not in utero at the decedent's death or any | 26 | | person claiming for or through the child. |
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| 1 | | (g) The changes made to subsection (a) of this Section by | 2 | | this amendatory Act of the 100th General Assembly apply to the | 3 | | estates of all decedents who die on or after January 1, 2018. | 4 | | For the purpose of determining the property rights of any | 5 | | person under any instrument, the changes made by this | 6 | | amendatory Act of the 100th General Assembly apply to all | 7 | | executed instruments in existence on or after January 1, 2018. | 8 | | (Source: P.A. 99-85, eff. 1-1-16 .)".
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