Public Act 100-0085
 
SB0883 EnrolledLRB100 08695 HEP 18830 b


  
    AN ACT concerning civil law.
  
 
    Be it enacted by the People of the State of Illinois,
 
represented in the General Assembly:
  



 
    Section 5. The Probate Act of 1975 is amended  by changing 
Section 2-3 as follows:
 


    (755 ILCS 5/2-3)  (from Ch. 110 1/2, par. 2-3)




    Sec. 2-3. Posthumous child.  
    (a) For purposes of the descent and distribution of 
property passing by intestate succession under this Act, a A 
posthumous child of a decedent shall
receive the same share of 
an estate as if the child had been born in wedlock during the

decedent's lifetime, but only if: (1) the ; provided that such 
posthumous child is shall have been in utero at the decedent's 
death; or (2) in the case of a posthumous child not in utero at 
the decedent's death, the conditions of subsection (b) are met.

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