II. Intestate Succession
We begin with intestate succession.
Uniform Probate Code (“UPC”) section 2-103(c) states: “If a decedent is survived by one or more descendants, any part of the intestate estate not passing to the surviving spouse passes by representation to the decedent’s surviving descendants.” On the facts posited for this part of the Article, Martin was not survived by a spouse. He was survived by, among others, his son Lindsay. Thus, the intestate estate passes by representation to Martin’s surviving “descendants.”
Who counts as Martin’s “descendants” for purposes of intestate succession? Lindsay certainly is a surviving descendant of Martin, but what about James Mitchell and Warren? Do they count as children of James and therefore as descendants of Martin? UPC section 2-120 states: “Except as otherwise provided under Section 2-121,” which concerns surrogacy and is not relevant on the facts posited, “parentage of an individual conceived by assisted reproduction is determined under [cite to Uniform Parentage Act (2017) Article 7 other than Section 708(b)(2)] [cite to equivalent provisions of state’s parentage act] [applicable state law].”
There are three relevant sections in article 7 of the Uniform Parentage Act (“UPA”): section 703, section 704, and section 708(b). Section 703 states: “An individual who consents under Section 704 to assisted reproduction by a woman with the intent to be a parent of a child conceived by the assisted reproduction is a parent of the child.” Section 704 states:
(a) Except as otherwise provided in subsection (b), the consent described in Section 703 must be in a record signed by a woman giving birth to a child conceived by assisted reproduction and an individual who intends to be a parent of the child.
(b) Failure to consent in a record as required by subsection (a), before, on, or after birth of the child, does not preclude the court from finding consent to parentage if:
(1) the woman or the individual proves by clear-and-convincing evidence the existence of an express agreement entered into before conception that the individual and the woman intended they both would be parents of the child; or
(2) the woman and the individual for the first two years of the child’s life, including any period of temporary absence, resided together in the same household with the child and both openly held out the child as the individual’s child, unless the individual dies or becomes incapacitated before the child attains two years of age or the child dies before the child attains two years of age, in which case the court may find consent under this subsection to parentage if a party proves by clear-and-convincing evidence that the woman and the individual intended to reside together in the same household with the child and both intended the individual would openly hold out the child as the individual’s child, but the individual was prevented from carrying out that intent by death or incapacity.
Section 708(b) states:
If an individual who consented in a record to assisted reproduction by a woman who agreed to give birth to a child dies before a transfer of gametes or embryos, the deceased individual is a parent of a child conceived by the assisted reproduction only if:
(1) either:
(A) the individual consented in a record that if assisted reproduction were to occur after the death of the individual, the individual would be a parent of the child; or
(B) the individual’s intent to be a parent of a child conceived by assisted reproduction after the individual’s death is established by clear-and-convincing evidence; and
(2) either:
(A) the embryo is in utero not later than [36] months after the individual’s death; or
(B) the child is born not later than [45] months after the individual’s death.
Applying these provisions—other than UPA section 708(b)(2), which is rendered inapplicable to the law of intestate succession by UPC section 2-120—we likely can conclude that James is a parent of James Mitchell and Warren and, thus, that Martin is their grandparent for purposes of intestate succession. We do not know whether there is a record satisfying the requirements of UPA sections 704(a) and 708(b)(1)(A), but likely there is clear and convincing evidence satisfying UPA sections 704(b)(1) and 708(b)(1)(B).
There is yet a further requirement for James’s children to inherit from Martin. UPC section 2-104(b)(3) states:
If the decedent dies before the start of a pregnancy by assisted reproduction resulting in the birth of an individual who lives at least [120 hours] after birth, that individual is deemed to be living at the decedent’s death if [the decedent’s personal representative, not later than [6] months after the decedent’s death, received notice or had actual knowledge of an intent to use genetic material in the assisted reproduction and]:
(A) the embryo was in utero not later than [36] months after the decedent’s death; or
(B) the individual was born not later than [45] months after the decedent’s death.
The official Comment to UPC section 2-104 explains the rationale in the context of intestate succession for these time limits, which are needed to provide finality in probate administration while giving surviving family members time to consider and go forward with posthumous assisted reproduction. The Comment states in pertinent part:
The 36-month period is designed to allow for a period of grieving, time to decide whether to go forward with assisted reproduction, and the possibility of initial unsuccessful attempts to achieve a pregnancy. The 36-month period also coincides with Section 3-1006, under which an heir is allowed to recover property improperly distributed or its value from any distributee during the later of three years after the decedent’s death or one year after distribution. If the assisted-reproduction procedure is performed in a medical facility, the date when the embryo is in utero will ordinarily be made evident by medical records. In some cases, however, the procedure is not performed in a medical facility, so such evidence may be lacking. Providing an alternative of birth within 45 months is designed to provide certainty in such cases. The 45-month period is based on the 36-month period with an additional nine months tacked on to allow for a typical period of pregnancy. The time limits are bracketed to indicate that states may want to consider other time limits that may be more consistent with their rules of probate administration. Bracketed language in this Section imposes a requirement of notice to the personal representative. (Note that Section 3-703 gives the decedent’s personal representative authority to take account of the possibility of a pregnancy that starts after the decedent’s death with respect to the distribution of all or part of the estate.)
Applying these time limits to the facts posited, we can see that James Mitchell is an eligible heir of Martin’s intestate estate because he was born in October 2004, 39 months after Martin’s death; however, Warren is not an eligible heir because he was born in August 2006, 61 months after Martin’s death. Probate administration requires finality, and Warren was neither in utero nor born in time.
An alert reader will have noticed that the time limits in UPC section 2-104(b)(3) are the same as the time limits in UPA section 708(b)(2). Why does the UPC exclude these time limits in section 2-120 only to impose them in section 2-104? The reason is that there is a crucial difference between the UPA and the UPC. In the UPA, the time limits apply for all parentage purposes. In UPC section 2-104, the time limits apply only for purposes of intestate succession.
These time limits have their origin in the 2008 revisions of the Uniform Probate Code. Starting in 2008, section 2-120(k) of the UPC provided, for intestate succession purposes:
If, under this section, an individual is a parent of a child of assisted reproduction who is conceived after the individual’s death, the child is treated as in gestation at the individual’s death for purposes of Section 2-104(a)(2) if the child is:
(1) in utero not later than [36] months after the individual’s death; or
(2) born not later than [45] months after the individual’s death.
In 2019, the substance of this provision was moved to Section 2-104 and renumbered as section 2-104(b)(3).
The UPA drafters took the time limits from the context of probate administration, with its need for finality, and applied the time limits for all parentage purposes.
To illustrate how the time limits are inappropriate in some donative contexts outside of probate, we now turn to the second scenario.
III. Class Gifts
Suppose instead—as in the actual case—that Martin had created inter vivos trusts for the benefit, after his death, of his “descendants.” We know that his son Lindsay is included in the class gift, but what about James Mitchell and Warren?
The starting point in uniform law is UPC section 2-705(b), which states: “Except as otherwise provided in subsections (c) and (d), a class gift in a governing instrument which uses a term of relationship to identify the class members is construed in accordance with the rules for intestate succession.” With respect to a class gift in favor of Martin’s “descend-ants,” this provision points us to the parent-child rules for intestate succession.
The parent-child rule for intestate succession with respect to a child of assisted reproduction is contained in UPC section 2-120, which points to UPA article 7, except for UPA section 708(b)(2). All this was discussed above in Part II. As we concluded above in Part II, both James Mitchell and Warren are children of James and, therefore, descendants of Martin for purposes of intestate succession. The barrier to Warren’s inheritance from Martin’s intestate estate in Part II was not a lack of parentage but rather the time limit in UPC section 2-104(b)(3) applicable in the specific context of intestate succession. Here we are not in the context of intestate succession. Thus, for the purpose of UPC section 2-705(b), both James Mitchell and Warren are children of James and “descendants” of Martin.
It must be noticed, however, that UPC section 2-705(b) begins with the following phrase: “Except as otherwise provided by subsections (c) and (d), . . . .” On the facts posited, subsection (d) is relevant. It states:
In construing a class gift in a governing instrument of a transferor who is not a parent of an individual, the individual is not considered the child of the parent unless:
(1) the parent, a relative of the parent, or the spouse or surviving spouse of the parent or of a relative of the parent performed functions customarily performed by a parent before the individual reached [18] years of age; or
(2) the parent intended to perform functions under paragraph (1) but was prevented from doing so by death or another reason, if the intent is proved by clear and convincing evidence.
The purpose of subsection (d) is explained in the official Comment:
The general theory of subsection (d) is that a transferor who is not the parent of an individual would want the individual to be included in a class gift as a child of the individual’s parent only if (1) the parent, a relative of the parent, or the spouse or surviving spouse of the parent or of a relative of the parent performed functions customarily performed by a parent before the individual reached the age of majority, or (2) the parent intended to perform such functions but was prevented from doing so by death or some other reason, if such intent is proved by clear and convincing evidence.
On our facts, the requirements of subsection (d) are satisfied with respect to James Mitchell and Warren. James’s wife, Nancy, performed parental functions with respect to each boy before he reached age 18. The aim of subsection (d) is to effectuate Martin’s probable intention. Where, as here, the transferor (Martin) is not the parent (James), we want reassur-ance that someone in the family circle performed parental functions before the child reached the age of majority.
There is a further provision that must be considered: UPC section 2-705(e). This subsection articulates rules of class closing. Class gifts, such as a gift to Martin’s “descendants,” are controlled by rules of class closing. These rules determine when potential new entrants may no longer become members of the class.
UPC section 2-705(e)(3) and (e)(4) obviously are inapplicable here. These paragraphs concern an adoption in progress or an adjudication of de facto parentage in progress. Neither is relevant on our facts.
UPC section 2-705(e)(2) also is inapplicable. It states:
If the start of a pregnancy resulting in the birth of an individual occurs after the death of the individual’s parent and the distribu-tion date is the death of the parent, the individual is deemed to be living on the distribution date if [the person with the power to appoint or distribute among the class members received notice or had actual knowledge, not later than [6] months after the parent’s death, of an intent to use genetic material in assisted reproduction and] the individual lives at least [120 hours] after birth, and:
(A) the embryo was in utero not later than [36] months after the deceased parent’s death; or
(B) the individual was born not later than [45] months after the deceased parent’s death.
This provision applies only when the distribution date is the death of the parent—here, James—as in or akin to James’s will or intestate estate. The distribution dates from the trusts we are discussing occur on or after the death of Martin.
Thus, the only class-closing rule that applies on our facts is the rule articulated in UPC section 2-705(e)(1). This paragraph states: “If a particular time is during a gestational period that results in the birth of an individual who lives at least [120 hours] after birth, the individual is deemed to be living at that time.” It must be remembered that the longstanding rule at common law is that a class member of a multiple-generation class gift, such as “descendants,” must be alive at the time of distribution. There also is a longstanding rule at common law that a class member in gestation is treated as being alive at that time if the class member subsequently is born alive. UPC section 2-705(e)(1) codifies that second rule and adds a bracketed 120-hour period of survival.
Let us apply the rule in UPC section 2-705(e)(1) to our posited scenario. With respect to a trust distribution made on January 1, 2002, for example, the only descendant of Martin alive or in gestation is Lindsay. With respect to a trust distribution made on July 1, 2004, the descendants of Martin alive or in gestation are Lindsay (alive) and James Mitchell (in gestation). With respect to a trust distribution made on July 1, 2006, the descendants of Martin alive or in gestation are Lindsay (alive), James Mitchell (alive), and Warren (in gestation). With respect to a trust distribution made on January 1, 2010, the descendants of Martin alive or in gestation are Lindsay, James Mitchell, and Warren (each alive).
This fact-pattern illustrates why the time limits in UPA section 708(b)(2) are unnecessary when dealing with trust distributions. There is no inconvenience in including Warren in the trust distributions in which he is an eligible class member, even though Warren was in utero more than 36 months after James’s death.
Indeed, suppose that, much later, James Mitchell or Warren had a child. There is no inconvenience in including that child as one of Martin’s descendants for purposes of trust distributions made when that child is alive or in gestation.
IV. Concluding Reflections
The 36/45-month time limits on parentage by posthumous pregnancy had their origin within uniform law in the 2008 UPC. They were drafted to apply in the context of probate administration. Probate administration requires finality. The 36/45-month time limits strike a reasonable balance in that context. But the 36/45-month time limits are unnecessary in the context of trust distributions such as in the case of Martin B. There, the UPC properly applies only the ordinary rules of class closing, which suffice.
The UPA drafters took the UPC’s time limits from the context of probate administration and applied them for parentage purposes generally. This leads to the odd result that Warren is not a child of James for purposes of the UPA but is treated as a child of James for the purpose of distribu-tions from Martin’s trusts.
It is easy to articulate the rationale for the UPC’s results. The aim of the UPC on these facts is to effectuate the grantor’s probable donative intention except where there is a strong countervailing policy, such as probate finality—and even probate finality, at some point, likely is consistent with the typical grantor’s probable intention. It makes sense to say that Warren is not an intestate heir of Martin but is eligible for trust distributions made when Warren is alive or in gestation.
The UPA, however, takes the blanket view that Warren is not a child of James for reasons of timing. This result is inconsistent with the empha-sis in article 7 of the UPA on the intent to be a parent as the touchstone of parentage, once the intent is evidenced in a record or established by clear and convincing evidence. The UPA’s results frustrate the intent of both James and Martin. There may be a need for finality at some point in parent-age determinations, but a time limit lifted from probate administration is not necessarily the right time limit for parentage generally.
The UPC’s time limits are sensitive to context. They apply in specific contexts only.
The official Comment to UPA section 708 states that the rationale for the UPA’s time limits is consistency with the UPC. But in fact the UPA is inconsistent with the UPC because the UPA’s time limits are not sensi-tive to context. They apply generally.
The UPC’s context-sensitive approach is designed to advance the purposes of the law of donative transfers. It advances those purposes more effectively than would a time limit applicable to all fact patterns.
The Uniform Law Commission should replace the UPA’s blanket time limits derived from succession law with an approach to parentage finality aimed at achieving more nuanced and appropriate results as a matter of the law of parent and child. Such an approach will be more effective than the current UPA in advancing the purposes of wealth transfer and parentage law.
