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| Public Act 100-0085 | ||||
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AN ACT concerning civil law.
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Be it enacted by the People of the State of Illinois,
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represented in the General Assembly:
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Section 5. The Probate Act of 1975 is amended by changing | ||||
Section 2-3 as follows:
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(755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
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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
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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.
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(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.)
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