Posthumously conceived child – how is inheritance affected?

Science and the law sometimes leapfrog over each other. In general, it is the law which strives to keep pace. For example, if a scientist “discovers” a genome, can he or she own it?

Recently it was reported that posthumous in-vitro fertilization has led to a new legal wrinkle. If a child is conceived with a parent’s DNA after the parent has died, can that child be a survivor? A number of legal issues related to in-vitro fertilization are working their way through the courts. Survivorship and inheritance for children created posthumously is a complicated issue.

One case may have set a precedent. Sources report that a man who became ill with cancer and knew he was likely to die from it, donated his sperm so his wife could conceive their child after his death. She did so, but the Social Security Administration denied their child Social Security survivor’s benefits because the child had not been living when the parent died, and thus could not survive the parent in their reasoning.

Another contentious issue that has been working its way through family courts is how frozen eggs, sperm or fertilized eggs are treated in the event of a divorce.

In an apparent contrast several states, including Massachusetts, New Jersey, Delaware and Iowa, allow for inheritance by children posthumously conceived. Most states however, only allow children conceived posthumously to inherit if the deceased parent puts it in writing in a will or other document.

One of the reasons for comprehensive estate planning is to make certain that your wishes are honored. It seems unlikely that a parent would want to provide for existing children in his or her will, and not also want to provide for a potential posthumously conceived child.

Source: USA Today, “Benefits for posthumously conceived children considered,” Paul Egan, Nov. 13, 2012

  • At our Calabasas law firm we assist individuals and families with any matter pertaining to estate planning including complicated inheritance issues such as the posthumously conceived child mentioned in this post.