Post-Mortem Conception and Inheritance

Joshua Greenfield (University of Minnesota J.D. candidate (2007)) has recently published his note entitled Dad Was Born a Thousand Years Ago? An Examination of Post-Mortem Conception and Inheritance, With a Focus on the Rule Against Perpetuities, 8 Minn. J. L. Sci. & Tech. 277 (2007).

Here is the conclusion of his note:

Technology has advanced at rates far outpacing other facets of our intellectual lives; this is perhaps truer than in the field of biology than anywhere else. Despite the recognition over four decades ago of the problems that would be posed by advances in reproductive technology, the legislative and executive branches of our government have not seen fit to come up with a satisfactory solution. The courts have thus been left in a position where they must interpret laws that were written without contemplation of today’s technology and decide how to apply them to situations never envisioned by the drafters. More troubling for the legal community is that court decisions can quickly be made obsolete by even further advances in technology. A comprehensive scheme must be adapted to deal with the advances in reproductive technology which takes account of past court rulings and common law principles, yet remains flexible enough to deal with situations that were not contemplated by the drafters of these rulings/principles.

Many options have been put forth for how to deal with the problems posed by advancing technology. Some of the earlier proposed solutions fail because they did not realize the eventual possibilities that would develop, nor the widespread implementation and success of the technology. Others are unsatisfactory because they do not realize that we are not starting on a clean slate, but must make any new scheme fit the basic principles of past rulings/principles.

When it comes to testate succession, it seems best to enact clear bright-line rules that are independent of current technological practices and that rely on best matching the decedent’s intent with the original purpose of the Rule against Perpetuities. By disallowing the inclusion of posthumously conceived children from inclusion in an “all my children” clause, we ensure that estates will not be indefinitely held in trust, thereby decreasing their social utility. The same socially negative effect would be possible if testate clauses picking out all posthumously conceived children were allowed. By still allowing for testators to single out particular posthumously conceived children or determinable groups of posthumously conceived children, people are given the chance to ensure that their estate is distributed in the manner they most prefer.

By setting a firm cutoff for children to inherit under intestate succession, bereaved parties are given the opportunity to fulfill the wishes of deceased loved ones, even if those wishes were not explicitly stated in a will. The harshness of this cutoff is blunted by allowing posthumously conceived children to be eligible for Social Security survivor’s benefits.

The proposal set forth in this article also takes into account current technology and possible advances in future technology, thus preventing situations encountered in the past when proposed solutions were shortsighted in scope.

Finally, this proposal falls within the framework laid out by the courts for intestate succession while maximizing the rights of the posthumously conceived child, without unduly burdening others in line for intestate succession. Similarly, the proposed methods for fixing problems relating to the Rule against Perpetuities provides for equal protection of equally situated posthumously conceived children, while trying to maximize respect for the decedent’s wishes without undoing the purpose for which the rule was first enacted.