SB0883sam001 100TH GENERAL ASSEMBLY

Sen. John G. Mulroe

Filed: 3/6/2017

10000SB0883sam001 LRB100 08695 HEP 20926 a

AMENDMENT TO SENATE BILL 883

AMENDMENT NO. ______. Amend Senate Bill 883 on page 6, by replacing everything after the enacting clause with the following:

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

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

Sec. 2-2. Children born out of wedlock. The intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his estate are fully paid, descends and shall be distributed as provided in Section 2-1, subject to Section 2-6.5 of this Act, if both parents are eligible parents. As used in this Section, "eligible parent" means a parent of the decedent who, during the decedent's lifetime, acknowledged the decedent as the parent's child, established a parental relationship with the decedent, and supported the decedent as the parent's child. "Eligible parents" who are in arrears of in excess of one year's child support obligations shall not receive any property benefit or other interest of the decedent unless and until a court of competent jurisdiction makes a determination as to the effect on the deceased of the arrearage and allows a reduced benefit. In no event shall the reduction of the benefit or other interest be less than the amount of child support owed for the support of the decedent at the time of death. The court's considerations shall include but are not limited to the considerations in subsections (1) through (3) of Section 2-6.5 of this Act.

If neither parent is an eligible parent, the intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his or her estate are fully paid, descends and shall be distributed as provided in Section 2-1, but the parents of the decedent shall be treated as having predeceased the decedent.

If only one parent is an eligible parent, the intestate real and personal estate of a resident decedent who was a child born out of wedlock at the time of death and the intestate real estate in this State of a nonresident decedent who was a child born out of wedlock at the time of death, after all just claims against his or her estate are fully paid, subject to Section 2-6.5 of this Act, descends and shall be distributed as follows:

(a) If there is a surviving spouse and also a descendant of the decedent: 1/2 of the entire estate to the surviving spouse and 1/2 to the decedent's descendants per stirpes.

(b) If there is no surviving spouse but a descendant of the decedent: the entire estate to the decedent's descendants per stirpes.

(c) If there is a surviving spouse but no descendant of the decedent: the entire estate to the surviving spouse.

(d) If there is no surviving spouse or descendant but the eligible parent or a descendant of the eligible parent of the decedent: the entire estate to the eligible parent and the eligible parent's descendants, allowing 1/2 to the eligible parent and 1/2 to the eligible parent's descendants per stirpes.

(e) If there is no surviving spouse, descendant, eligible parent, or descendant of the eligible parent of the decedent, but a grandparent on the eligible parent's side of the family or descendant of such grandparent of the decedent: the entire estate to the decedent's grandparents on the eligible parent's side of the family in equal parts, or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(f) If there is no surviving spouse, descendant, eligible parent, descendant of the eligible parent, grandparent on the eligible parent's side of the family, or descendant of such grandparent of the decedent: the entire estate to the decedent's great-grandparents on the eligible parent's side of the family in equal parts or to the survivor of them, or if there is none surviving, to their descendants per stirpes.

(g) If there is no surviving spouse, descendant, eligible parent, descendant of the eligible parent, grandparent on the eligible parent's side of the family, descendant of such grandparent, great-grandparent on the eligible parent's side of the family, or descendant of such great-grandparent of the decedent: the entire estate in equal parts to the nearest kindred of the eligible parent of the decedent in equal degree (computing by the rules of the civil law) and without representation.

(h) If there is no surviving spouse, descendant, or eligible parent of the decedent and no known kindred of the eligible parent of the decedent: the real estate escheats to the county in which it is located; the personal estate physically located within this State and the personal estate physically located or held outside this State which is the subject of ancillary administration within this State escheats to the county of which the decedent was a resident or, if the decedent was not a resident of this State, to the county in which it is located; all other personal property of the decedent of every class and character, wherever situate, or the proceeds thereof, shall escheat to this State and be delivered to the State Treasurer of this State pursuant to the Uniform Disposition of Unclaimed Property Act.

For purposes of inheritance, the changes made by this amendatory Act of 1998 apply to all decedents who die on or after the effective date of this amendatory Act of 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1998 apply to all instruments executed on or after the effective date of this amendatory Act of 1998.

A child born out of wedlock is heir of his mother and of any maternal ancestor and of any person from whom his mother might have inherited, if living; and the descendants of a person who was a child born out of wedlock shall represent such person and take by descent any estate which the parent would have taken, if living. If a decedent has acknowledged paternity of a child born out of wedlock, or if during his lifetime or after his death a decedent has been adjudged to be the father of a child born out of wedlock, or if a decedent is a parent of a child born out of wedlock as provided in Section 2-3 of this Act, that person is heir of his father and of any paternal ancestor and of any person from whom his father might have inherited, if living; and the descendants of a person who was a child born out of wedlock shall represent that person and take by descent any estate which the parent would have taken, if living. If during his lifetime the decedent was adjudged to be the father of a child born out of wedlock by a court of competent jurisdiction, an authenticated copy of the judgment is sufficient proof of the paternity; but in all other cases paternity must be proved by clear and convincing evidence. A person who was a child born out of wedlock whose parents intermarry and who is acknowledged by the father as the father's child is a lawful child of the father. After a child born out of wedlock is adopted, that person's relationship to his or her adopting and natural parents shall be governed by Section 2-4 of this Act. For purposes of inheritance, the changes made by this amendatory Act of 1997 apply to all decedents who die on or after January 1, 1998. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of 1997 apply to all instruments executed on or after January 1, 1998.

(Source: P.A. 94-229, eff. 1-1-06.)

(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 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 executed instruments in existence on or after January 1, 2018.

(Source: P.A. 99-85, eff. 1-1-16.)".