New York & Pretermitted Children

New York requires pretermitted children to be in gestation when the testator dies under a recent amendment to § 5-3.2 of the Estates, Powers and Trusts Law.  2006 Sess. Law News of N.Y. Ch. 249. This change is in response to reproductive techniques that allow children to be born years or even decades after the testator’s/testatrix’s death.

The following explanation is from NY Legis. Leg. Memo 249 (2006):

The measure would avoid the possibility that a child born many years after the death of the testator, without the testator’s desire and knowledge, will claim a share of the estate pursuant to EPTL 5-3.2. The sperm, ova or preembryos may have been donated to a fertility clinic, without any intent on the part of the donor that a resulting child would share in his or her estate. The testator’s children born during the testator’s lifetime would be unfairly deprived of their expected inheritance by a child with whom the testator had no relationship, a possibility that in all likelihood would have not been foreseen or desired by the testator.

Moreover, a testator who anticipates the possibility of having a posthumous child could readily create a trust for such child under his or her last will.

Finally, the administration of the estate would be unduly complicated and prolonged by the uncertainty of possibly posthumous children born years after the testator’s death.