Advancements in reproductive science are creating complications when it comes to inheritance rights of children, specifically posthumously conceived (PC) children. Such complications have resulted in a number of recent court cases and amendments to state law. How are children defined under your legacy planning documents? It may be worthwhile to take a more careful look. In particular, consider whether a PC child should or would receive the same inheritance as the children whom you actively took part in creating and raising during your lifetime.

The possibility of a father dying as the result of an accident, illness, or in combat before the birth of a child is not a new phenomenon and the inheritance rights of such a child have accordingly been considered and provided for under state law for some time. What may not always be clear, however, are the inheritance rights of a child who is both conceived and born after the death of a parent.

In order to understand this issue and how state law is addressing it, it’s important to understand the context under which a PC child’s inheritance rights arise. Upon your passing, your estate must go through the legal process known as probate, during which the state monitors the transfer of your assets to your named beneficiaries or heirs at law. If you left behind a Last Will and Testament, the terms of your Will dictate how and to whom your assets are transferred; otherwise, state intestate succession statutes will govern the disposition of your assets. The rights of a PC child will be determined either by the terms of your Will, or if you didn’t leave a Will, the state law definitions of children and descendants.

The majority of states do not have laws specifically allowing or disallowing a PC child’s inheritance from a deceased parent, and those that do allow it, do so with restrictions. For example, under Virginia Code § 20-158, a PC child is not considered the child of the decedent unless embryo implantation occurs before notice of the decedent’s death can reasonably be communicated to the physician performing the procedure or the decedent consented to be a parent in writing, executed before the implantation. Maryland Estates and Trust Code § 3-107 further restricts the inheritance rights of PC children by requiring that the decedent specifically consented to posthumous conception of the child and the child was born within two years of the decedent’s death.

In 2012, this matter came before the United States Supreme Court in, Astrue v. Capato 132 S.Ct. 2021 (2012). Similar to cases that came before it, Capato involved a Florida mother’s application for social security survivor benefits on behalf of her twin children who were conceived after her husband died of cancer. The twins were (i) planned by both parents as they wanted their son to have siblings, (ii) conceived posthumously, and (iii) born 18 months after their purported father’s death. The Supreme Court ruled that state law governs this field and that because Florida does not provide for a PC child to have inheritance rights, the PC twins were not entitled to social security survivor benefits.

As advancements in science make assisted reproduction more common, it is important for legacy planning practitioners and their clients to discuss and carefully consider the implications of state law and emerging case law concerning the PC child on a legacy plan.

To read the full text of the Decision in Astrue v. Capato, please click here.