Intestacy and the Posthumously Conceived Heir

Joseph H. Karlin (J.D. Candidate, Temple University Law School) has recently published his Comment entitled “Daddy, Can You Spare a Dime?”: Intestate Heir Rights of Posthumously Conceived Children, 79 Temp. L. Rev. 1317 (2006).

Here is an excerpt from the article’s introduction:

This Comment addresses the legal issues concerning the intestate heir rights of posthumously conceived children. Part II of this Comment presents a brief overview of current law in the area of posthumous conception, including recent court decisions, model code provisions, and state intestacy statutes. Part III discusses public policy considerations involved in balancing the rights of posthumous children against other stakeholders regarding inheriting from deceased parents and receiving social security survivor’s benefits. Part III also examines how the current state intestacy statutes and the Social Security Act might be interpreted by state and federal courts, and it presents a proposal for legislative action to improve certainty in this area of the law. Finally, Part IV presents a conclusion of the issues raised in this Comment.
   

This Comment proposes that U.S. legislatures and the drafters of model intestacy codes should redraft the current laws in light of the uncertainty created by the holdings of the recent state and federal cases regarding posthumous conception. More specifically, this Comment advises that all state legislatures should pass specific legislation directed at balancing the rights of posthumous children against other stakeholders. Also, this Comment recommends that the drafters of the Uniform Probate Code, Uniform Parentage Act, and Restatement (Third) of Property: Wills and Other Donative Transfers should revise the relevant sections to clarify rights of posthumous children. Finally, this Comment suggests that Congress should clarify the intent of the Social Security Act to address the posthumous conception situation.