On the Horizon: Maryland’s New Definition of “Child” and “Funeral Expenses”

Currently, Maryland State law (Estates and Trusts §1-205) defines a “child” as “a legitimate child, an adopted child, and [certain] illegitimate child[ren]…A child does not include a stepchild, a foster child, or a grandchild or more remote descendant.”  After the current legislative session, the Maryland legislature has taken steps to include, in the definition of “child”, a child conceived from posthumous use of the genetic material of a deceased individual upon meeting certain qualifications.  Passed by both the Senate (SB71) and the House (HB101), the new definition of “child”, if signed into law by the Governor, shall include “[a] child conceived from the genetic material of a person after the death of the person if: (1) the person consented in a written record to use of the person’s genetic material for posthumous conception in accordance with the requirements of §20-111 of the Health – General Article; and (2) the person consented in a written record to be the parent of a child posthumously conceived using the person’s genetic material.” (SB71/HB101).  §20-111 stated that the definition of child shall only apply to “sperm or eggs from a donor known to the individual who intends to become a parent through the use of the sperm or eggs.” (SB71/HB101).  However, the after-born “child” shall only be considered such if the posthumously conceived child is conceived with 2 years of the date of death. (§3-107(B)(3) of SB71/HB101).

The bill is criticized because it will create the ability for alteration of legacy inheritance as unintended and unimagined by past generations who made these bequests.  Finally, many estate planning and probate practitioners identify the increased liability concerns this creates regarding distributions prior to the conception of this new class of “child” because fiduciaries may have to wait the full 2 year period prior to making any distribution.  If signed into law by the Governor, it is rumored that such legislation will take effect on October 1, 2012.

Also awaiting approval by the Governor is the amended definition of “funeral expenses” under Estates and Trusts §8-106.  Passed by both the Senate (SB397) and the House (HB773), the new definition of “funeral expenses”, shall include “food and beverages related to bringing together the Decedent’s family and friends for a wake or pre-funeral or post-funeral gathering or meal.” (SB397/HB773).

Both the newly drafted definitions are pending for approval by the Governor.  These definitions in their own respects change the landscape of estate planning and probate administration and pose interesting debates for the future.  It is up to the Governor now to decide the fate of these two changes.  Stay tuned.

-  Gary Altman, Esq. and Adam Abramowitz, Esq.

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