Inheritance Rights of Posthumous Children Conceived Using Biotechnology

Are posthumous children conceived using biotechnology “issue” and “descendants” for purposes of being beneficiaries of a trust? The New York surrogate court answered this question in the affirmative. In re Martin B., 841 N.Y.S.2d 207 (Sur. Ct. 2007).

In this case, wife preserved her husband’s sperm, and several years after his death, used it to conceive two children. The husband’s father had a trust that provided for portions of the trust principal to be distributed to his “issue” and “descendants.” After his death, the trustees brought a proceeding to determine whether the settlor’s son’s posthumous children qualified as beneficiaries of this trust.

In deciding this issue, the court considered The Restatement of Property. The Restatement provides that a child of assisted reproduction is considered a child of a person who consented to parenthood but was prevented from becoming a parent by death. The court stated that “if an individual considers a child to be his or her own, society through its laws should do so as well.”