2021 saw significant developments, lessons and reminders. In addition to the developments discussed below, important legislation was enacted in 2020, which became effective in 2021: New York's brand new post-mortem right of publicity, which grants to the heirs band executors of New York decedents the right to exploit the decedents' name and image; the Child-Parent Security Act, which revolutionized New York law in the third-party reproductive context by legally establishing a child's relationship to their parents where the child is conceived through assisted reproduction; and final revisions to the Power of Attorney form. Since those developments were included in the Top 10 Developments, Lessons and Reminders of 2020 (NYLJ, Jan. 22, 2021), they are not repeated here but please refer to that article for a full discussion of those important developments.

12. Assets Acquired After Death Pass by Intestacy, Not Will. In the Estate of Keough, 150 N.Y.S.3d 449 (N.Y. App. Div. 2021), the Appellate Division determined that assets acquired by a testator's estate after the testator's death pass pursuant to the laws of intestacy and not the terms of the decedent's will. The decedent was the wife of one of the hostages held captive in Iran beginning in 1979. After they both died, Congress enacted legislation to provide compensation to former hostages and their family members, or if deceased to their personal representatives. In concluding that testators may not dispose by will of property that is not owned by them at the time of death, the court looked to Estates, Powers & Trusts Law (EPTL) §3-3.1, which provides that a devise of all property will pass all property a testator was entitled to dispose of at the time of death. According to the court, a testator lacks testamentary capacity to dispose of assets not owned by them at the time of death because they could not have known the nature and extent of that property. As a result, the after-acquired property passed from the decedent's estate to a distributee brother and not the residuary beneficiary under the decedent's will. A legislative amendment may be necessary to ensure that after-acquired property passes in accordance with the decedent's intent.

11. Duplicate Charitable Filings Removed and Donor Anonymity Protected. Charitable entities organized, operating or fundraising in New York state are required to file an annual financial report with the Attorney General's Charities Bureau. Amendments to New York law (N.Y. Executive Law §172-b), which became effective on Jan. 1, 2021, imposed an additional requirement to make the same filing with the New York Department of State (DOS). A law enacted on Nov. 12, 2021 (A.1141/S.4817) removes the extra filing requirement with the DOS, which was duplicative and burdensome for not-for-profits. In Americans for Prosperity Foundation v. Bonta, 141 S.Ct. 2373 (2021), the Supreme Court held that California's requirement for charities to file donor information (collected on IRS Form 990 Schedule B) with the state attorney general is unconstitutional. Following that holding, the New York Attorney General suspended its collection of Schedule B. As of July 30, 2021, public charities' annual filings will no longer require disclosure information that identifies donors. The law enacted on Nov. 12 also requires the Attorney General to keep donor information confidential.