New York Law and Posthumously Conceived Children

Robert Matthew Harper (Associate, Trusts and Estates Litigation and Commercial Litigation Departments, Farrell Fritz, P.C. and Special Professor of Law, Hofstra University School of Law) recently authored an article entitled Dead Hand Problem: Why New York’s Estates, Powers and Trusts Law Should Be Amended to Treat Posthumously Conceived Children as Decedent’s Issue and Descendants, 21 Quinnipiac Prob. L. J. 267 (2008).

Here is an excerpt from the Introduction:

Imagine that you are a posthumously conceived child, the product of your mother’s decision to impregnate herself with your deceased father’s sperm. Your father, a member of the United States Army, deposited sperm samples with a sperm bank before his deployment to Iraq in April 2003. He did so to preserve his sperm in the event that he was infertile when he returned home. However, your father died serving his country, leaving no will or otherwise enforceable testamentary plan. Following your father’s death, your mother elected to have a child, you, by impregnating herself with the sperm that your father deposited at the sperm bank. Now, your mother, having given birth to you, seeks to have you recognized as one of your father’s issue, so that you can take as a beneficiary of the trust established by your father’s parents for his benefit and that of his issue.

This Article addresses whether, and to what extent, New York’s Estates, Powers and Trusts Law should be amended to treat posthumously conceived children as the legal, as well as biological, issue and descendants of their deceased parents. In Parts II and III, respectively, this Article discusses the development of assisted reproductive technology and the national trend toward recognizing the inheritance rights of posthumously conceived children. This Article also details the manner in which New York’s current inheritance laws treat posthumously conceived children and analyzes the bill concerning the same subject matter that is currently pending before the New York Legislature. Finally, in Part V, this Article proposes that New York’s legislature should adopt a statute that recognizes posthumously conceived children as decedents’ issue and descendants for inheritance purposes.