Modern fertility science has made incredible leaps in the storage of reproductive material be it sperm, eggs, or frozen embryos. As a result, the chance of a child conceived or born after the death of one of the parents is an increasing possibility. This situation creates estate planning conundrums aplenty and, unfortunately, the law has not kept up. Only half the states have laws tackling the subject at all and even then there is little uniformity with seven excluding posthumously conceived children excluded from inheritance completely. But those states were recently bolstered in their stance when the Supreme Court allowed a Florida statute that excluded a posthumously conceived child from intestate inheritance. Estate plans, such as trusts, that leave gifts to children in general, but do not vest for a number of years, can be particularly vulnerable since a surviving spouse could have more children with stored reproductive material and affect intended distributions. As a result, the best way to combat the problem is to specifically address the issue whenever a posthumously conceived child is a possibility. It would be a simple fix and create certainty that could avoid many legal problems down the line.
See Dominic Jones, David Shayne: Benefits Due a Child Conceived After a Parent’s Death Are Uncertain, Wealth Strategies Journal, February 8, 2016.
Special thanks to Dominic Jones for bringing this article to my attention.
