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IN THE MATTER OF THE ESTATE OF WILLIAM J. KOLACY, DECEASED.
Superior Court of New Jersey, Chancery Division, Morris County,
2000 N.J. Super. Lexis 275, March 31, 2000, Decided. Opinion by:
Reginald Stanton.
On
March 31, 2000, I delivered an oral opinion declaring that Amanda
Kolacy and Elyse Kolacy, three year old girls who are residents
of New Jersey, are the heirs of their father William Kolacy, even
though they were born eighteen months after his death. This opinion
supersedes my earlier oral opinion. The
plaintiff in this action is Mariantonia Kolacy. She has brought
this action to obtain a declaration that her two children, Amanda
and Elyse, have the status of intestate heirs of her late husband,
William J. Kolacy. Because this action involves a claim that one
or more statutes of the State of New Jersey are unconstitutional,
the Attorney General of New Jersey was notified of the action and
has appeared through a Deputy Attorney General to defend the constitutionality
of the state statutes involved. On
February 7, 1994, William J. Kolacy and Mariantonia Kolacy were
a young married couple living in Rockaway, New Jersey. On that
date, William Kolacy was diagnosed as having leukemia and he was
advised to start chemotherapy as quickly as possible. He feared
that he would be rendered infertile by the disease or by the treatment
for the disease, so he decided to place his sperm in the Sperm
and Embryo Bank of NJ. On the morning of February 8, 1994, William
Kolacy and Mariantonia Kolacy harvested his sperm and Mariantonia
Kolacy delivered it to the sperm bank. Later that day, the chemotherapy
began. After the chemotherapy had been in progress for one month,
a second harvesting of sperm occurred and was placed in the sperm
bank. Unfortunately,
William Kolacy's leukemia led to his death at the age of 26 on
April 15, 1995. He died domiciled in New Jersey. On April 3, 1996,
almost a year after the death of William Kolacy, plaintiff Mariantonia
Kolacy authorized the release of his sperm from the Sperm and Embryo
Bank of NJ to the Center for Reproductive Medicine and Infertility
at Cornell University Medical College in New York City. An IVF
fertilization procedure uniting the sperm of William Kolacy and
eggs taken from Mariantonia Kolacy was performed at the Center.
The procedure was successful and the embryos which resulted were
transferred into the womb of Mariantonia Kolacy. Twin girls, Amanda
and Elyse, were born to Mariantonia Kolacy on November 3, 1996.
The births occurred slightly more than eighteen months after the
death of William Kolacy.
I
find that the certifications submitted by Mariantonia Kolacy and
Dr. Isaac Kligman of the Center for Reproductive Medicine and Infertility
are fully credible and that they firmly establish the facts set
forth above. Accordingly, it is clear that Amanda and Elyse Kolacy
are genetically and biologically the children of William Kolacy.
In Paragraphs 7 through 9 of the verified complaint in this action,
the plaintiff states her reasons for bringing this action as follows:
“7. The Social Security Administration has denied dependent
benefits to Amanda and Elyse Kolacy contending they are not children
of a deceased worker. On November 16, 1999 Administrative Law Judge
Richard L. De Steno upheld the denial of benefits in a written
decision. 8. Section 216 of the Social Security Act provides,
inter alia, that ‘child's insurance benefits can be paid
to a child who could inherit under the State's intestate laws.’
9. Plaintiff seeks a declaration that her daughters, posthumously
conceived utilizing the late William J. Kolacy's stored sperm,
are among the class of persons who are his intestate heirs so as
to pursue her claim for child's insurance benefits on behalf of
the decedent's children under the Social Security Act.”
Plaintiff is currently pursuing her claims and those of the children
through appellate process within the Social Security Administration,
and, if necessary, will eventually litigate them in the federal
courts. In bringing this action in the Superior Court, the plaintiff
is attempting to obtain a state court ruling which will be helpful
to her in pursuing her federal claims before a federal administrative
agency and before the federal courts.
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I
also note that, entirely aside from claims being asserted with
respect to Social Security benefits, Amanda and Elyse are entitled
to have their status as heirs of their father determined for a
variety of state law purposes. The State argues that, because William
Kolacy left no assets and thus had no estate at the time of his
death, there is really no point in determining who are his heirs
under New Jersey law. William Kolacy died without a will, but he
did not leave any assets which would pass under the intestate laws
of New Jersey. His assets were modest because of his young age
and because of the difficult economic stresses that were placed
upon him and his wife by his illness. Such assets as he had passed
to his wife because of the joint ownership of property. Therefore,
a determination that Amanda and Elyse were his heirs would not
presently entitle them to any property under intestate law. However,
a present determination of their status as heirs is appropriate
because of the effect it has on their general legal and social
status and because of the impact which it may have upon property
rights as they evolve over a period of time. For one thing, it
is conceivable, though not very likely, that William Kolacy might
have an estate because of assets passing to him at a future date.
More realistically, a determination that the children are the heirs
of William Kolacy could be significant in terms of their rights
to take from his parents or from his collateral relatives in the
event that one or more of those persons were to die intestate.
Their status as his heirs could also be significant in determining
their rights under the wills of their father's relatives. Thus,
for a variety of estate law purposes, there is a present real utility
to a declaration of the inheritance status of Amanda and Elyse.
I will therefore entertain this action and I will make a ruling
with respect to whether Amanda and Elyse legally qualify as the
heirs of William Kolacy. See New Jersey Citizen Action v. Riviera
Motel Corp., 296 N.J. Super. 402, 686 A.2d 1265 (App. Div. 1997);
New Jersey Home Builders Association v. Division of Civil Rights,
81 N.J. Super. 243, 195 A.2d 318 (Ch. Div. 1963). There
are no New Jersey decisions dealing with the central issue presented
in this case -- whether Amanda and Elyse Kolacy, conceived after
the death of their biological father and born more than eighteen
months after his death, qualify as his heirs under state intestate
law. I have not been able to find any American appellate court
decisions dealing with that central issue. Counsel
have discussed at some length N.J.S.A. 3B:5-8, which is the New
Jersey statute dealing with after born heirs. That statute provides
as follows: "Relatives of the decedent conceived before his
death but born thereafter inherit as if they had been born in the
lifetime of the decedent." Counsel for plaintiff argues that
this statute, as applied to children such as Amanda and Elyse Kolacy,
is unconstitutional because "the effect of the statute as
to posthumously conceived children is to both invidiously and irrationally
discriminate against them." My view is that the constitutional
argument against this statute is fundamentally misplaced and that
it really is not necessary to reach the issue of whether this statute
is constitutional. A
brief discussion of elementary estate law concepts is appropriate
at this point. When a person dies, whether he dies leaving a will
or whether he dies intestate, there is a real life need and a legal
need to determine which persons are entitled to take his estate,
and when that determination is made the general policy is to deliver
to those persons rather promptly the property to which they are
entitled. Thus, the identity of people who will take property from
a decedent has traditionally been determined as of the date of
the decedent's death. However,
there have long been exceptions to the rule that the identity of
takers from a decedent's estate is determined as of the date of
death. Those exceptions are based on human experience going back
to time immemorial. We have always been aware that men sometimes
cause a woman to become pregnant and then die before the pregnancy
comes to term and a child is born. It has always been routine human
experience that men sometimes have children after they die. To
deal fairly with this reality, decisional law and statutory law
have long recognized that it is appropriate to hold the process
of identifying takers from a decedent's estate open long enough
to allow after born children to receive property from and through
their father. See Byerly v. Tolbert, 250 N.C. 27, 108 S.E.2d 29
(N.C. 1959); Baugh v. Baugh, 25 Kan. App. 2d 871, 973 P.2d 202
(Kan. App. 1999). Aside
from the fact that a man sometimes dies before his child is born,
there is the fact that when any person dies, a woman related to
that decedent may be pregnant with a child who upon birth will
qualify as a member of a class of persons entitled to take property
from the decedent. The law has traditionally held the class of
persons entitled to take from the decedent open long enough to
allow a child who was being carried in his or her mother's womb
at the time of the decedent's death to receive a share of the property.
See Estate of Wolyniec v. Moe, 94 N.J. Super. 43, 226 A.2d 743
(Ch. Div. 1967); Chemical Bank & Trust Company v. Godfrey,
29 N.J. Super. 226, 102 A.2d 108 (Ch. Div. 1953).
N.J.S.A.
3B:5-8 is part of that traditional recognition of exceptions
to the rule that takers from a decedent's estate should be determined
as of the date of the decedent's death. N.J.S.A. 3B:5-8 was enacted
in 1981 as part of a fairly broad reorganization of statutory
law dealing with decedents' estates. In 1981, reproductive technology
had advanced to the point that it is conceivable that the legislature
might have been aware of the kind of problem posed by our present
case. However, the relevant legislative history indicates that
the current statute was simply a carryover of earlier statutes
going back to at least 1877. The simple fact is that when the
legislature adopted N.J.S.A. 3B:5-8 it was not giving any thought
whatever to the kind of problem we have in this case. To the extent
that there was a conscious legislative intent about reproductive
processes involved, the intent was undoubtedly to deal fairly and
sensibly with children resulting from traditional sexual activity
in which a man directly deposits sperm into the body of a woman.
With one exception mentioned hereafter, the New Jersey Legislature
has never addressed the problems posed in estate law by current
human reproductive technology.
The ability to remove sperm and eggs from human beings and to
preserve their viability by storing them for long periods of time
at low temperatures makes it possible for children to come into
existence as the genetic and biological offspring of a father or
of a mother who has long since been dead. My impression is that
it is now possible to preserve the viability of human genetic material
for as long as ten years. It is likely that the time will be extended
in the future. The evolving human productive technology opens up
some wonderful possibilities, but it also creates difficult issues
and potential problems in many areas. It would undoubtedly be useful
for the Legislature to deal consciously and in a well informed
way with at least some of the issues presented by reproductive
technology. The
State has urged that courts should not entertain actions such as
the present one, but should wait until the Legislature has dealt
with the kinds of issues presented by this case. As indicated above,
I think it would be helpful for the Legislature to deal with these
kinds of issues. In the meanwhile, life goes on, and people come
into the courts seeking redress for present problems. We judges
cannot simply put those problems on hold in the hope that some
day (which may never come) the Legislature will deal with the problem
in question. Simple justice requires us to do the best we can with
the statutory law which is presently available. As I look at N.J.S.A.
3B:5-8 and other statutory provisions dealing with intestate succession,
I discern a basic legislative intent to enable children to take
property from their parents and through their parents from parental
relatives. Although the Legislature has not dealt with the kind
of issue presented by children such as Amanda and Elyse, it has
manifested a general intent that the children of a decedent should
be amply provided for with respect to property passing from him
or through him as the result of a death. It is my view that the
general intent should prevail over a restrictive, literal reading
of statutes which did not consciously purport to deal with the
kind of problem before us.
Given
that general legislative intent, it seems to me that once we establish,
as we have in this case, that a child is indeed the offspring of
a decedent, we should routinely grant that child the legal status
of being an heir of the decedent, unless doing so would unfairly
intrude on the rights of other persons or would cause serious problems
in terms of the orderly administration of estates.
I note that after born children who come into existence because
of modern reproductive techniques pose special challenges to society
and to our legal system. Historically, after born children were
conceived and in their mother's womb at the time of a decedent's
death and they could be counted on to appear no later than approximately
nine months after that death. Now they can appear after the death
of either a mother or a father and they can appear a number of
years after that death. Estates cannot be held open for years simply
to allow for the possibility that after born children may come
into existence. People alive at the time of a decedent's death
who are entitled to receive property from the decedent's estate
are entitled to receive it reasonably promptly. It would undoubtedly
be both fair and constitutional for a Legislature to impose time
limits and other situationally described limits on the ability
of after born children to take from or through a parent. In the
absence of legislative provision in that regard, it would undoubtedly
be fair and constitutional for courts to impose limits on the ability
of after born children to take in particular cases.
In
our present case, there are no estate administration problems involved
and there are no competing interests of other persons who were
alive at the time of William Kolacy's death which would be unfairly
frustrated by recognizing Amanda and Elyse as his heirs. Even in
situations where competing interests such as other children born
during the lifetime of the decedent are in existence at the time
of his death, it might be possible to accommodate those interests
with the interests of after born children. For example, by statutory
provision or decisional rule, payments made in the course of routine
estate administration before the advent of after born children
could be treated as vested and left undisturbed, while distributions
made following the birth of after born children could be made to
both categories of children. There
has been some discussion in this case of the possible impact of
the New Jersey Parentage Act, N.J.S.A. 9:17-38 to -59. That act
is very important in dealing with problems posed by fathers seeking
to avoid their responsibility for the support of children, and
it also deals with a number of other parentage issues. But most
of its provisions are not even remotely relevant to the kind of
issues posed by our present case. One
provision of the Parentage Act which is facially somewhat relevant
to our case is N.J.S.A. 9:17-43a(1) which reads: "A man is
presumed to be the biological father of a child if: He and the
child's biological mother are or have been married to each other
and the child is born during the marriage, or within 300 days after
the marriage is terminated by death, annulment or divorce." This
provision might arguably be interpreted as creating the reverse
presumption that a child born more than 300 days after the death
of a man shall be presumed not to be the biological child of the
deceased man. I think that treating the cited provision as creating
such a reverse presumption of non-parentage would be somewhat strained
because it is counterproductive to the purposes of the act, but
even if such a reverse presumption is read into the act, it is
subject to being rebutted by clear and convincing factual evidence.
In our present case, there is clear and convincing evidence that
Amanda and Elyse are the biological children of William Kolacy.
It is interesting to note that there is one section of the Parentage
Act in which the Legislature does deal explicitly with parentage
issues (and derivative estate law issues) posed by new reproductive
technology. That section is N.J.S.A. 9:17-44, which reads in
pertinent part:
a. If under the supervision of a licensed physician and with the
consent of her husband, a wife is inseminated artificially with
semen donated by a man not her husband, the husband is treated
in law as if he were the natural father of a child thereby conceived.
The husband's consent shall be in writing and signed by him and
his wife. . . . b. Unless the donor of semen and the woman have
entered into a written contract to the contrary, the donor of semen
provided to a licensed physician for use in the artificial insemination
of a woman other than the donor's wife is treated in law as if
he were not the father of a child thereby conceived and shall have
no rights or duties stemming from the conception of a child.
This legislative treatment of certain issues arising out of reproductive
technology is interesting and sensible. But it does not deal expressly
with posthumous conception, and, more importantly, it does not
deal with sperm contributed by the husband of the woman giving
birth to a child. It is not relevant to the facts of our present
case.
The ability to cause children to come into existence long after
the death of a parent is a recently acquired ability for human
society. There are probably wise and wonderful ways in which that
ability can be used. There are also undoubtedly some special problems
that the exercise of that ability might pose. There are, I think,
ethical problems, social policy problems and legal problems which
are presented when a child is brought into existence under circumstances
where a traditionally normal parenting situation is not available.
One would hope that a prospective parent thinking about causing
a child to come into existence after the death of a genetic and
biological parent would think very carefully about the potential
consequences of doing that. The law should certainly be cautious
about encouraging parents to move precipitously in this area. I
accept as true Mariantonia Kolacy's statement that her husband
unequivocally expressed his desire that she use his stored sperm
after his death to bear his children. She did, in fact, use his
sperm to bear his children. Some may question the wisdom of such
a course of action, but one can certainly understand why a loving
and caring couple in the Kolacys' position might choose it. Be
all that as it may, once a child has come into existence, she is
a full-fledged human being and is entitled to all of the love,
respect, dignity and legal protection which that status requires.
It seems to me that a fundamental policy of the law should be to
enhance and enlarge the rights of each human being to the maximum
extent possible, consistent with the duty not to intrude unfairly
upon the interests of other persons. Given that viewpoint, and
given the facts of this case, including particularly the fact that
William Kolacy by his intentional conduct created the possibility
of having long-delayed after born children, I believe it is entirely
fitting to recognize that Amanda and Elyse Kolacy are the legal
heirs of William Kolacy under the intestate laws of New Jersey.
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