Controversy Over Treatment of Posthumous Children In Wills

The law does not provide for what happens when a child is conceived and born after their parent’s death. Even if that parent provides for the child in the will, there is still the unanswered question of whether that child is entitled to proceeds from the grandparents’ estates.

Questions also surround how long you should keep an estate open if you do provide for a post-mortem child. Some argue that keeping an estate window open is playing God, but if you don’t provide for them in your will, the law will automatically exclude them from the estate. Providing for children who are not blood related with specific language in wills is an important issue for same-sex couples too. The offspring may not be genetically related to its parents and it is certainly not related to the grandparents.

A model probate statute that was adopted in 2008 would provide estate inclusion to children who are born to a surviving spouse within 45 months of a married decedent’s death. Only two state legislatures have adopted this rule so far though.

One of the largest controversies relating to postmortem children is whether those children should receive dependent benefits when they weren’t even alive when their parent died. The Supreme Court will hear this issue in its current term.

See Posthumous Births, US News Report, Jan. 25, 2012.

Special thanks to Jim Hillhouse (Professional Legal Marketing  (PLM, Inc.)) for bringing this article to my attention.