OGC Op. No. 04-03-19
The Office of General Counsel issued the following opinion on March 23, 2004, representing the position of the New York State Insurance Department.
Re: Procuring Life Insurance on Child's Father Without his Written Consent
Question Presented:
May a mother, who is not married to the father of her child, procure a life insurance policy on the father without his knowledge and his written consent?
Conclusion:
Pursuant to N.Y. Ins. Law § 3205(c) (1) & (2) (McKinney 2000 & Supp. 2004), a mother, who is not married to the father of her child, is prohibited from procuring a life insurance policy on her child's father without his written consent.
Facts:
The inquiry is general in nature.
Analysis:
The inquirer asks whether she may procure life insurance on the father of her child without his knowledge and his written consent. The inquirer notes that she is not married to, or on speaking terms with her child's father. The Insurance Law requires that before an applicant may obtain insurance on the life of another person,1 such applicant must have an insurable interest in that person. Insurable interest is defined in N.Y. Ins. Law § 3205(a)(1)(A) & (B) (McKinney 2000 & Supp. 2004), as follows:
(a) In this section:
(1) The term, "insurable interest" means:
(A) in the case of persons closely related by blood or by law, a substantial interest engendered by love and affection.
(B) in the case of other persons, a lawful and substantial economic interest in the continued life, health or bodily safety of the person insured, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement or injury of the insured.
As seen above, insurable interest, in the case of those related by blood or law, means a "substantial interest engendered by love and affection." In the case of those not related by blood or law, insurable interest exists where the applicant has "a lawful and substantial economic interest in the continued life, health or bodily safety of the person insured, as distinguished from an interest which would arise only by, or would be enhanced in value by, the death, disablement, or injury of the insured."
Further, N.Y. Ins. Law § 3205(c)(1) & (2) (McKinney 2000 & Supp. 2004) provides:
(c) No contract of insurance upon the person shall be made or effectuated unless at or before the making of such contract the person insured, being of lawful age or competent to contract therefor, applies for or consents in writing to the making of the contract, except in the following cases:
(1) A wife or a husband may effectuate insurance upon the person of the other.
(2) Any person having an insurable interest in the life of a minor under the age of fourteen years and six months or any person upon whom such minor is dependent for support and maintenance, may effectuate a contract of insurance upon the life of such minor, in an amount which shall not exceed the limits specified in section three thousand two hundred seven of this article. (emphasis added).
Section 3205(c) prohibits an applicant for life insurance from procuring such insurance upon the life of another person without that person's written consent. As seen above, Section 3205(c) (1) & (2) exempts, from the consent requirement, spouses and persons having an insurable interest in the life of a minor under the age of fourteen years and six months, or any person upon whom such minor is dependent upon for support and maintenance. Obtaining life insurance in a situation that does not fall within any of these two exemptions, without the insured's written consent, would violate the Insurance Law.
While the inquirer may have an insurable interest in her child's father by virtue of having "a lawful and substantial economic interest in [his] continued life, health or bodily safety," because she is not in a husband and wife relationship with him, Section 3205(c)(1) & (2) would prohibit her from obtaining life insurance on him without his written consent. The second exemption would not apply because the inquirer is not proposing to procure insurance on the life of her minor child.
This opinion is limited to an application and interpretation of the Insurance Law. No opinion is hereby given regarding any other state or federal law, or how a court of competent jurisdiction should rule in a case with similar facts.
For further information you may contact Associate Attorney D. Monica Marsh at the New York City Office.
1 With regard to life policies, the question of insurable interest arises only when the applicant for the insurance is someone other than the applicant/insured. See, N.Y. Ins. Law § 3205(b)(1) (McKinney 2000 & Supp. 2004) provides, in pertinent part, as follows:
(b)(1) Any person of lawful age may on his own initiative procure or effect a contract of insurance upon his own person for the benefit of any person, firm, association or corporation.