ART-ful Conception

Americans have been using assisted reproductive technologies (ART) for many years, but these technologies can cause very complicated estate planning issues. If a child is conceived after the death of his or parent as a result of ART, questions surface regarding the posthumously conceived child’s ability to inherit from the deceased parent or the deceased parent’s parents.

According to Jeffery Pennell (Professor of Law, Emory University), “it’s unquestionable that if I [as a parent] left a will, I can specify whether I want them included or not. I think the more challenging question is what are we going to do when a grandparent’s estate is involved, and no one has spoken to the grandparents about this.”

However, even when grandparents agree to provide for potential posthumously conceived grandchildren, the issue still exists of how long to keep the estate open for the potential heir. A 2008 model probate statute provides automatic estate inclusion to any child born after a parent’s death within forty-five months of the married decedent’s death. Only Colorado and North Dakota have adopted this rule, though around fifteen other states allow posthumous children to inherit under certain circumstances.

See Philip Moeller, Posthumous Births: An Emerging Estate Challenge, US News, Jan. 25, 2012.

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