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Posthumous Births: An Emerging Estate Challenge

Philip Moeller

More than half a million cryopreserved embryos are now in storage somewhere in the United States. An unknown but far greater number of sperm donors have also made deposits that could be used for an expanding array of assisted reproductive technologies (ART). Putting aside any number of religious, ethical, and social issues, ART is also creating very difficult problems for some estates.

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When a couple or surviving spouse die, their assets usually pass to their children and, later still, to their grandchildren. But what should happen when a child is conceived and born after, and in some cases many years after, their parent's death? Even if such a child, sometimes called a postmortem conception child, is anticipated in a parent's will, that does not solve the matter. Are they or are they not to be considered a grandchild and entitled to proceeds of the estates of the parents of their deceased parent?

"I think it's unquestionable that if I [as a parent] left a will, I can specify whether I want them included or not," says Jeffrey Pennell, a law professor at Emory University. "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."

Bruce Stone, a Florida estate attorney, recalls a client meeting in his office where he raised this issue with an older couple. They did not have an immediate response, but their son was in the meeting and Stone says he had strong views.

"The child said, 'Stop right there. Mom and dad, my wife and I have been unable to bring a child to term and we have a number of frozen embryos, and an understanding that she will try to have a child should I die. And I want you to provide for them,'" Stone recalled.

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"How long do you keep an estate open?" after a person's death, he asks. In this case, the son's parents supported his request and included a provision in their estate for his unborn children. In this case, Stone says, the window for keeping the estate open for new heirs was four years. He has since had several other cases with different lengths.

"Yes, you're playing God in a way," he admits. "But if you don't do it, the law does it, and they're not included." That's because state laws do not recognize postmortem children as legitimate heirs.

A model probate statute adopted in 2008 would automatically provide estate inclusion to any children born to a surviving spouse within 45 months of a married decedent's death, explains Kristine Knaplund, a law professor at Pepperdine University. To date, however, only two state legislatures--Colorado and North Dakota--have adopted this rule. As for the other states, she says, about 15 would allow the child to inherit under certain circumstances. In another five or so, the child would definitely not inherit. In the remaining states, the status is unclear, primarily due to an absence of case law.

"If you don't draft these things, you force people to go through these contorted procedures," Stone says. While the law is in flux, he notes, "who cares what the law is as long as you deal with it in these estate and trust documents."

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Further, he observes, such language "is also very relevant for defining children from same-sex marriages." There, the offspring may not even be genetically related to his or her parents, and certainly not to their grandparents.

Perhaps the largest area of estate conflict over postmortem children has arisen with Social Security claims that such children should receive dependent benefits when they weren't even alive when their parent died. A number of cases have been brought in this area and the issue will be argued before the Supreme Court in its current term.

"There is something like 100 such cases in the pipeline," Pennell says, "and we'll have a resolution by the end of the current term in terms of how the federal government should determine this entitlement."

"The legal issue turns on state law," he explains, "because the Social Security law includes in the class of survivors who are entitled to benefits if their parents die early [those defined] under state law, which means it's going to vary from one jurisdiction to another."

Twitter: @PhilMoeller

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