How the revised Uniform Probate Code tries to accommodate modern definitions of “family” — and how practitioners might cope with that attempt
Lee-ford Tritt is a professor at The Univeristy of Florida College of Law in Gainesville, Fla., and director of The Center For Estate Planning.
An important policy debate is emerging in the United States concerning how the law of succession should change to encapsulate more fully modern American families. Changing family structures and new artificial reproductive technologies1 (ART) are redefining “parentage” in law and society. These influences undermine the traditional definition of a parent-child relationship: the presence or presumption of a genetic link between two individuals. Recognizing child status is of particular concern for succession law in determining distributions to “children” for intestacy purposes and, for the laws of wills, in construction, class gift and anti-lapse issues.
Recently, members of the National Conference of Commissioners on Uniform State Laws entered the debate over the definition of parent-child relationships by promulgating a number of new amendments to the Uniform Probate Code (UPC). Far-reaching in scope, these amendments provide a series of technical rules to define the parent-child relationship within the burgeoning areas of ART and adoption.2
Before the amendments, a parent-child relationship primarily was understood as a natural relationship based upon biological reproduction. Child status, for inheritance purposes, flowed easily from the recognition of this natural fact, or, in the case of adoption, from the statutory creation of a legal substitute designed to replicate the genetic original.
Accordingly, the former UPC Section 2-114 permitted children to inherit from their genetic parents. In fact, children could inherit from both genetic parents regardless of their parent's marital status — thereby overturning an old common law rule denying inheritance to children born out of wedlock.
The former statute also recognized a parent-child relationship between an adoptive parent and an adopted child. For instance, parents could inherit from or through their adopted children, and adopted children could inherit from or through their adoptive parents.3 Although an adoption generally severed the respective inheritance rights by and between genetic parents and their biological children (thereby effectuating a “fresh start” policy4), former Section 2-114(b) created a step-parent exception to this severance. Under this exception, a child could inherit from or through a step-parent, a genetic custodial spouse and a genetic non-custodial parent.5 For instance, when a child's parent dies, and the child's surviving parent remarries, this exception provides that remarriage of the surviving parent and subsequent adoption of the child by a step-parent does not sever the child's right to inherit from his deceased parent's relatives. Finally, under former Section 2-114, parents may lose their right to inherit from or through their children if they've refused to support these children.
The former UPC Section 2-114 was blissfully simple yet maddeningly frustrating and arcane. On one hand, the former UPC provision relied on familiar state family laws regarding the parent-child relationship and was written clearly enough for laymen to read and generally understand its implications. That clarity empowered individuals to opt out by drafting a will.
On the other hand, former Section 2-114 did not account for new types of family structures, the decline of the nuclear family model, and advances in reproductive and genetic technologies involving surrogacy, sperm/egg donation, genetic mapping and cloning. Nor did it take into account the growing number of same-sex couples or single individuals who were becoming parents through ART.
The bright-line tests and exceptions of the former Section 2-114 were quickly becoming too brittle. A revision was sorely needed.
The UPC Amendments
The UPC amendments acknowledge that parentage is a much more complicated affair these days. For instance, it used to be that a mother-child relationship was self-apparent, as the mother gave birth to the child. Because a woman giving birth to a child was relatively undisputed, the law rarely confronted the question of legal motherhood. But egg donations and gestational carriers now can make identifying a mother-child relationship more difficult. Fathers' genetic connections always have been less apparent, so legal paternity traditionally has been inferred through a system of presumptions and defenses. For example, the husband of a woman who gave birth was presumed to be the father of her child. But DNA testing and ART (including sperm donations) make presuming and recognizing the father-child relationship more difficult as well.
Into this breach, the UPC has leapt. Rather than merely referring to or incorporating state family law or the Uniform Parentage Act (UPA) to define parent-child relationships, the UPC now seeks to explicitly define such relationships within its own text for its own purposes. (The UPA and state family laws provide rules for determining “legal parentage” to determine, among other things, family law issues such as identifying who will make decisions concerning the child's well-being, have custody, provide support and have visitation rights.)
The UPC amendments — though they often borrow the UPA's definitions and categories for determining parent-child status — do not adopt verbatim all of the UPA's definitions for the parent-child relationship. As a result, decisions determining legal parentage might not sync with decisions determining a parent-child relationship for inheritance purposes.
The amendments replaced the former UPC Section 2-114 with nine intricate sections defining the parent-child relationship for succession law purposes (Sections 2-114 through 2-122). Interestingly, to determine a child's inheritance rights, the UPC has switched from defining the child's status to identifying and categorizing the parents' status.
So let's look at precisely how the amendments now define genetic parents, adoptive parents, parents of children conceived using ART and parents of posthumously conceived children.
Genetic parents — The 2008 UPC amendments retain genetics as the building block for parent-child status. Under UPC Section 2-117, a “parent-child relationship exists between a child and the child's genetic parents, regardless of the parents' marital status,” unless an individual is included or excluded as a “parent” under one of the other sections. Section 2-115(6) defines genetic mother as “the woman whose egg was fertilized by the sperm of the child's genetic father.” Section 2-115(5) defines genetic father as “the man whose sperm fertilized the egg of the genetic mother” or if a presumption of paternity exists under applicable state law.6
Adoptive parents — The newly added Section 2-118 begins with the general rule that a parent-child relationship exists between an adoptive parent and an adopted child. An adopted child may inherit from the adoptive parent and vice-versa. Similar to the previous UPC provision, when a child is adopted, his legal relationship generally is severed with his genetic parents and begins anew with his adoptive parents.
Section 2-119 retains the step-parent adoption exception. But the amendments also provide two new exceptions to adoption's fresh start policy. First, a child still may inherit from or through both genetic parents if the child is adopted by “a relative of a genetic parent or by the spouse or surviving spouse of a relative of a genetic parent.”7 Here, only the child has the right to inherit. Parents who give up custody cannot later inherit from that child. Second, children may inherit through their genetic parents if both of a child's genetic parents die, and then some third party (relative or stranger) adopts the child.8
One of the most striking changes in the amendments includes technical definitions for defining “adoptive parents” for inheritance purposes.
Section 2-118(b) creates a parent-child relationship between an individual and child who is “in the process of being adopted” by the individual (but before the adoption is legalized formally). This relationship is created in two circumstances:
if a married couple is in the process of adopting a child when one of the spouses dies, then the surviving spouse finalizes the adoption; and
if a step-parent is in the process of adopting a child when the step-parent dies and the step-parent's spouse survived the deceased step-parent by 120 hours.9
For example, under Section 2-118(b), an individual who is “in the process of being adopted” by a married couple, but not yet legally adopted when one of the soon-to-be adoptive spouses dies, nonetheless can inherit from that deceased spouse. This result ostensibly effectuates the decedent's intent, because the decedent apparently intended to complete the adoption and become a legal parent. (But because this scenario does not constitute an exception to the UPC's genetic parent foundation, the adoptee still would be permitted to inherit from his genetic parents if either or both died during the adoption process. Now, that would be a tragic jackpot to “win”.)
This new rule applies only to married couple adoption and step-parent adoption, not to couples who choose not to get married or cannot get married.10 Unfortunately, Section 2-118 does not define “in the process of being adopted,” leaving significant ambiguity and room for judicial interpretation. This is intentional. The comments to Section 2-118 state that this phrase is flexible and should be decided on a case-by-case basis. Accordingly, this standard may not promote predictability and could lead to inconsistent results.
Unfortunately, the amendments can leave the children of same-sex couples out in the cold. Section 2-119 does not provide for second-parent adoption scenarios. (Second parent adoption is a legal procedure that allows an unmarried same-sex partner to adopt his partner's biological or adopted children without terminating the first parent's right as a parent.) Section 2-119 only allows for a genetic parent's parent-child relationship to continue when a step-parent adopts the child, not an unmarried partner (even though state adoption laws would continue to recognize the parental status of the genetic parent.) Under the single-parent adoption rule, the genetic parent is legally displaced and no longer has a parent-child relationship with the child for intestacy purposes. So, for example, if a genetic birth mother in a same-sex couple wishes her partner to adopt the child so that the couple may jointly raise the child, the UPC would sever the birth mother's parent-child relationship for inheritance purposes.
Although a growing minority of states have begun recognizing second-parent adoption,11 the amendments provide no protections for children to inherit in states in which second-parent adoption is now recognized. From a family law perspective, parents in states that allow second-parent adoption but enact the UPC amendments are faced with a dilemma: adopt the child to provide legal and parental rights during the parents' and child's lifetime — then risk detriment if the birth parent has not executed a valid will. Note to all estate planning and family law attorneys: Be very sure to make your clients who are in same-sex relationships and have children aware of this potential problem.
Parents of children conceived with the help of ART — For the first time, the UPC explored parent-child relationships created by ART.
Individuals use ART for a variety of reasons: to overcome infertility, because they are in a same-sex relationship and because they are single. ART can achieve conception without sex, so people who want a child may use sperm, ova or gestational services that have been donated or sold. The parentage of children conceived through ART is often unclear, as these children may have connections to multiple adults. For instance, it's now possible for a child to have three potential “mothers”: the egg donor, the gestational surrogate and the woman who plans the pregnancy and intends to raise the child as the legal mother. It's also possible for a child to have three potential “fathers”: a sperm donor, the husband to the gestational surrogate and the man who intends to be legally recognized as the father.
The amendments attempt to cover with specificity, using complicated codified variables, the possible parent-child scenarios that could result from current ART methods.12 Unfortunately, Sections 2-120 and 2-121 are complex, unwieldy and cloaked in language that only a lawyer could love. Still, when read together, these provisions clearly seek to determine parentage according to intent. That is, the individuals who, at the time of conception, intended to raise the child are deemed to be the child's parents for inheritance purposes.13 This bears repeating: It's important to remember that these rules apply only for determining parentage for inheritance purposes — not for family law purposes.
The UPC amendments divide the definition of a parent-child relationship for children conceived by ART into two sections, (1) one when no woman is acting merely as a gestational carrier, and (2) one when a woman involved is acting solely as a gestational carrier:
No mere gestational carrier is involved — Section 2-120 concerns an individual or individuals who use ART and are each either the genetic or intended parent; no woman is acting solely as a gestational carrier in the process. The statute recognizes a parent-child relationship between the child and the birth mother.14 Therefore, if the birth mother was artificially inseminated (either by her husband or a sperm donor) or was impregnated using in vitro fertilization with an egg provided by an egg donor, the birth mother is deemed a “parent” for parent-child property succession purposes.
Generally, there is no parent-child relationship between a third party donor of genetic material (a sperm donor other than the husband or an egg donor) and the child. Even though the donor is technically the genetic parent of the child, there will be no parent-child relationship unless established under another provision of the UPC.
A parent-child relationship will exist between the child and the birth mother's husband if the husband provided the sperm and the sperm was used during the husband's lifetime.15 Under this ART (sometimes called artificial insemination husband, or AIH), the husband would nevertheless be the genetic parent. Note that this section only applies if the husband's sperm was used during his lifetime by his wife — it does not apply to posthumous conception.
In addition to the birth mother, a parent-child relationship exists between the child and an individual, if any, who is identified on the birth certificate as the child's parent. This section grants presumptive effect to a birth certificate identifying an individual other than the birth mother as the other parent of child conceived by ART.
Interestingly, the amendments open the door for inheritance by a child conceived by assisted reproduction through two parents of the same sex. Using Section 2-120(f) as an example, because it uses words such as “individual” and “other parent” instead of “father” or “spouse,” a lesbian woman, other than the birth mother, who consented to the assisted reproduction with intent to be treated as the child's other parent, is a parent of that child under the UPC.
A parent-child relationship also may be established by an individual (other than the birth mother) if the individual “consented” to the assisted reproduction by the birth mother with the intent to be treated as the other parent. (The individual's genetic material might or might not have been used to create the pregnancy.) Consent may be established in two ways.
First, if the individual signed a record, before or after the child's birth, evidencing the individual's consent. (Consent may be withdrawn, in a record, before the use of harvested eggs or sperm, or placement in utero of embryos.16)
And second, consent may be established if the individual functioned as a parent of the child no later than two years after the child's birth.
The amendments do not require the individual to function as a parent for any certain period of time. Moreover, an individual who is prevented from carrying out his or her intent to function as the parent of the child “by death, incapacity, or other circumstances” can have a parent-child relationship with the child if the individual can establish that he or she intended to function as a parent of the child no later than two years after the child's birth.17 Once again, these provisions open the door to children conceived by ART through same-sex couples.
A gestational carrier is involved — Section 2-121 deals with possible parental scenarios when a gestational mother is involved. That is to say, the birth mother is neither the intended parent nor genetic parent but gives birth under a gestational agreement.18
A parent-child relationship may be established by a court order designating an individual or individuals as the parent or parents of a child born to a gestational carrier — a woman who is not an intended parent and who gives birth to a child under a gestational agreement.19 If there is no court order, with respect to children born to a gestational carrier, the child will be the child of the intended parents20 and not of the gestational carrier. Intent alone, though, is not sufficient. A parent-child relationship only exists if the intended parent functioned as a parent of the child no later than two years after the child's birth or died while the gestational carrier was pregnant.21 In addition, a married individual who dies while the child is being carried by a gestational carrier and who intended to be treated as a parent of the child born to a gestational carrier also is considered a parent under the UPC amendments.22
Posthumously conceived children — Sections 2-120 and 2-121, when read together, provide the limitations regarding inheritance by posthumously conceived children. As a result of ever-advancing medical technology, a testator's sperm or eggs may be extracted and frozen before or even after the decedent's death. On the basis of technology alone (and putting all ethical concerns aside for the moment), the sperm and eggs may be used for conception long after the genetic donor has died. A posthumously conceived child will be treated as the child of the deceased individual if (a) the individual intended to be treated as a parent of a posthumously conceived child established by clear and convincing evidence; and (b) the child is in utero no later than 36 months after the decedent's death or born no later than 45 months after the individual's death.23 The rationale for the 36 to 45 month window is to provide the surviving spouse or partner enough time for a period of grieving and to decide whether or not to have a child by assisted reproduction. Interestingly, the surviving parent need not be the genetic parent of the posthumously conceived child. Moreover, even if the genetic donor fails to provide a written record stating that he or she intends to be treated as the parent of a posthumously conceived child, that person still can be considered the parent of the posthumously conceived child if clear and convincing evidence establishes that the genetic donor intended to function as the parent of the child.
Parents by equitable adoption — Section 2-122 states that the amendments do not impede or affect the doctrine of equitable adoption. Equitable adoption (also called virtual adoption, adoption by estoppel and de facto adoption) is an equitable remedy construed by courts to avoid what is perceived to be an injustice arising from a strict application of the intestacy statutes. An equitably adopted child is a child who's not legally adopted by the decedent, although the child was raised by the decedent in the decedent's home as the decedent's child. An individual asserts a claim of equitable adoption to take an intestate share of the decedent's estate.
“Functioning as a parent of the child” and inheritance by a genetic parent — Under Section 2-114, a parent is barred from inheriting from or through a child if “the parent's parental rights were terminated.” A parent also may be barred from inheriting from or through a child even if his or her parental rights are not terminated, if:
- the child dies before reaching his or her 18th birthday; and
- clear and convincing evidence illustrates that the parent's parental rights “could have been terminated … on the basis of nonsupport, abandonment, abuse, neglect, or other actions or inactions of the parent toward the child.”24
Class gifts allow individuals to devise their property to members of a particular class (often those in a particular relationship with the testator25), rather than write the names of each person. Class gifts may arise in two scenarios.
First, when the instrument is executed by a testator that refers to his own children. For example, the testator's will bequeaths his estate to “my children”.
Second, when the instrument is executed by someone other than a parent figure. For example, the testator bequeaths his estate to “A for life, remainder to A's children.”
Before the amendments, the members included in a class turned on whether the testator was a genetic or adoptive parent in relation to the class members. Generally, if the transferor of the class gift was a natural or adoptive parent, the former UPC provided that adopted and non-marital children were included in class gifts if they qualified to take under the rules of intestate succession. If the transferor of the class gift was someone other than the natural or adoptive parent, the former UPC provided that an adopted child would be included in the class only if the adopted child lived as a regular member of the genetic parent's (or an immediate relative of the genetic parent's) household while the adopted child was a minor.
The amendments to the class gift provision reflect changes to both the parent-child relationship as defined within the class, but also signal a change in the meaning of children within the class (as defined by the default intestacy rules of Sections 2-118 through 2-121). The UPC amendments concerning class gifts apply to the treatment of adopted children, non-marital children, a child conceived by ART and a gestational child. Similar to former UPC provisions, the rule is unchanged regarding class gifts when the testator is an individual other than the parent of the child: If the adoptive parent did not function as a parent of the child before the child reached 18 years of age, the class will not include the child in the class gift.26 This provision, however, also states that relatives by marriage are not included in a class gift unless “when the governing instrument was executed, the class was then and foreseeably would be empty; or … the language or circumstances otherwise establish that relatives by marriage were intended to be included.”
The amendments also added a class-closing provision that incorporates three independent rules. First, a child who is in utero at the testator's death must live 120 hours after birth to be included in the class gift.27 Second, if the distribution date is upon the death of parent, a posthumously conceived child is included in the class gift if the child is “in utero not later than 36 months after the deceased's parent's death or born not later than 45 months after the deceased parent's death.”28 Third, a child in the process of being adopted when the class closes is included in the class gift only if “the adoption is subsequently granted.”29
The 2008 amendments are a great step in the direction of expanding the definition of parent-child relationships for property succession purposes. Although complicated and ideologically inconsistent in certain places, the amendments do a valiant job of tackling complicated issues concerning blended step-families and children born of ART.
When state legislatures consider adopting these amendments, they also should consider that the parent-child relationship amendments represent a change to the entire intestacy and testacy schemes and may conflict with the state's family law definition of a parent-child relationship.
Moreover, lawyers should analyze whether their clients may fall into the “traps for the unwary” under the amendments — particularly class gifts and devises to children. Even where the amendments have not yet been adopted, lawyers should plan for the contingency that they will become law in the client's state by drafting out of the most controversial amendments. In particular, lawyers should define “parent,” “child,” “children,” “descendant,” “descendants,” “heir” and “heirs” in all dispositive instruments.30
- Uniform Probate Code (UPC) Section 2-115(a)(2) (2008) (defining assisted reproduction as “a method of causing pregnancy other than sexual intercourse.”)
- UPC Section 2-603.
- The “fresh start“ policy manifests the belief that it's in the best interest of a child to sever emotional and financial ties with the genetic parents to facilitate the creation of new ties with the adoptive parents.
- The step-parent and genetic custodial parent could inherit from, or through the child; but the genetic non-custodial parent could not inherit from or through the child. Also, note that under the step-parent adoption scenario, a child could potentially inherit from three parents.
- Accordingly, a “genetic father” may be “presumed” to be the father and not be the individual whose sperm actually fertilized the egg.
- UPC Section 2-119(c) (2008). “Relative” is defined as the child's “grandparent or a descendant of a [the child's] grandparent.” UPC Section 2-115(9).
- UPC Section 2-119(d). Typically, this exception might apply where a mother (M) and father (F) have a child (C). Both M and F die, and C is adopted by new parent, (N). When M's father (G) dies intestate, C would inherit from G. The drafters likely perceive that in this scenario, C would stay in contact with his genetic family. In fact, the comment to Section 2-119(d) states the assumption that the child will maintain ties with the genetic family and that the genetic family may play a part in deciding who will adopt the child. UPC Section 2-119, cmt.
- UPC Section 2-118(b).
- See Human Rights Campaign, Second-Parent Adoption, www.hrc.org/issues/2385.htm. Second-parent adoption is legal by court opinion or statute in the District of Columbia, California, Connecticut, Illinois, Massachusetts, New Jersey, New York, Pennsylvania, and Vermont. Ibid. Second-parent adoption has been granted in 18 other states. Ibid.
- These codified variables are inextricably linked to the development of ART. As ART is constantly evolving, the codified amendments' variables will fast become antiquated.
- The provisions are both gender- and marital status-neutral, thereby adding protections to same-sex and opposite sex unmarried couples.
- UPC Section 2-120(c). If the child conceived by ART is adopted, then the adoption sections would govern. See UPC Sections 2-118 and 2-119.
- UPC Section 2-120(d).
- If a marriage is dissolved before such placement, the resulting child is not the child of the former spouse unless there is a signed consent to be the child's parent, even if the child is born after the parents divorce.
- UPC Section 2-120 (f)(2)(B); see also Section 2-120 (h)(1) (stating that there is a presumption that the birth mother's spouse satisfies Section 2-120 (f)(2)(B) unless clear and convincing evidence establishes otherwise).
- A “gestational agreement” is defined as “an enforceable or unenforceable agreement … in which a woman agrees to carry a child to birth for an intended parent [or] intended parents.”
- UPC Section 2-121(b).
- UPC Section 2-120(d). If the child conceived by ART is adopted, then the adoption sections would govern. See UPC Sections 2-118 and 2-119.
- UPC Section 2-121(d).
- UPC Section 2-121(f); see UPC Section 2-121(g)(1), (2) (stating that the presumption under Section 2-121(f) does not apply if there is a court order stating otherwise or there is a signed record stating otherwise).
- UPC Section 2-120.
- UPC Section 2-114(a)(2) (2008).
- Though the term “testator” is used because of its simplicity, to denote the decedent who devises a gift to a particular class, the UPC equally applies to other sorts of dispositive transfers. See UPC Section 2-701 (1990).
- UPC Section 2-705(e); UPC Section 2-705(f).
- UPC Section 2-705(g)(1). An example of this section would be if Husband H devised in his will $1000 to H's children, and H's wife is pregnant at H's death with child X. If child X lives 120 hours after he is born, then he will be included in the class gift made by H.
- UPC Section 2-705(g)(2), cmt. (stating that if the distribution date occurs before or after the deceased parent's death, Section 2-705(g)(2) does not apply).
- UPC Section 2-705(g)(3).
- Lee-ford Tritt, “Sperms and Estates: An Unadulterated Functionally Based Approach to Parent-Child Property Succession,” 62 Southern Methodist University Law Review 367 (2009).
Lee-ford Tritt is a professor at The University of Florida College Of Law in Gainesville, Fla., and director of The Center For Estate Planning.