Class Gifts and the New Biology

Cameron Krier (J.D. and Law and Science Certificate in Health Law, Texas Tech University School of Law, 2006; M.P.H. candidate, University of Texas Health Science Center at Houston, 2007) has recently published her article entitled Heir on the Side of Exclusion? Addressing the Problems Created by Assisted Reproductive Technologies to the Inheritance Rights of a Class Named in a Funded Trust or Probated Will, 20 Quinnipiac Prob. L.J. 47 (2006).

Here is the conclusion of her article:

A strong argument resounds that children should be afforded the same rights, protections, and application of the law regardless of the circumstances surrounding their birth. Furthermore, the government has, in large part, supported advances in reproductive technologies that have resulted in the birth of many children that would not have otherwise been conceived. The court in Woodward stated, “[w]e do not impute to the Legislature the inherently irrational conclusion that assistive reproductive technologies are to be encouraged while a class of children who are the fruit of that technology are to have fewer rights and protections than other children.” This argument can be used to support the recognition of inheritance rights held by posthumous children to a decedent’s estate, but in evaluating the rights of afterborn beneficiaries to a [funded trust or probated will], other interests must be considered.

Excluding afterborn beneficiaries from a class entitled to inherit property from a [funded trust or probated will] will provide timely closure to the estate and will reduce the anxieties associated with ascertaining beneficiaries in the wake of advances to [assisted reproductive technology]. This article does not advocate for the outright denial of inheritance to all [posthumously conceived[ children, only those conceived after the class closes and affecting the distribution of property from a [funded trust or probated will]. Advances in technology should be encouraged and the inheritance rights of children created through [assisted reproductive technology] can be recognized through assiduous drafting of future estate plans. However, with regard to property that must be distributed from a [funded trust or probate will], a class entitled to inherit should not be held open to account for the possibility of afterborn beneficiaries.