Constitutional Law Meets the Conceived After Death Child

Assoc. Prof. Kristine S. Knaplund of the Pepperdine University School of Law has recently published an article entitled Equal Protection, Postmortem Conception, and Intestacy, 53 Kan. L. Rev. 627 (2005).

Prof. Knaplund’s article discusses

three issues that arise involving postmortem conception, inheritance, and the unintended consequences of current law: the financial incentives to have a PMC child; varying state laws on whether a PMC child can prove paternity and inherit from the father; and constitutional issues that may arise if the PMC child is precluded from establishing paternity.

She concludes by recognizing that

[o]ne solution is for Congress to amend the Social Security Act to delete the current provision for a presumption of dependency based on the child’s ability to inherit in intestacy under state law.  Such an amendment may cause repercussions far beyond the PMC child, however; it also would not solve the problems of uncertainty in administering decedents’ estates at the state level.  The most appropriate solution is for states to deal with this issue legislatively, by limiting inheritance claims to PMC children specifically provided for by the decedent’s will or trust.