Suppose you have a trust that provides for distributions to your descendants. Suppose further that your son dies having given his wife permission to use his frozen sperm. If later his widow has a child using that sperm, would that posthumously conceived child be entitled to a share of your trust?

Posthumous children (i.e., those born after the death of a parent) are not uncommon. A child’s father may die during the mother’s pregnancy, or a child’s mother may die during childbirth. In the United States, these children have generally been treated as if they were alive at the time of the parent's death for purposes of receiving an inheritance, notwithstanding their birth up to roughly nine months later. However, advances in assisted reproductive technology have greatly extended the length of time after death in which a child may be conceived. If a child is born years after his or her parent’s death, DNA tests may be able to confirm parentage, but rights to the parent’s estate, trusts, Social Security benefits, transfer on death deeds and accounts and retirement and life insurance benefits may have already been settled, and other persons' entitlements are likely to be affected by one or more new claimants. Accordingly, the ability of a posthumously conceived child to inherit from his or her parents or others or to receive property from a decedent is often uncertain and varies depending on state law.

The inheritance rights of posthumously conceived children are squarely at issue when the decedent died intestate (i.e. without a will), or when the decedent’s estate plan does not clearly address the rights of such children. Much of the case law, however, involves claims for Social Security survivor benefits; although Social Security is administered by the federal government, eligibility for survivor benefits depends on state intestacy laws.

Nearly half the states have no law that addresses posthumously conceived children and a handful of states have laws that would explicitly exclude them. In the states that recognize and seek to protect the inheritance rights of posthumously conceived children, common requirements include written consent from the gamete donor and the child must be conceived or born within 45 months or less after the donor's death.

Some state statutes also look to the donor’s intent, which may be evidenced by estate planning documents. Keep in mind that during serious illness, circumstances can change rapidly: if a person preserves his or her gametes because he or she is concerned about losing the ability to reproduce, this may in itself not constitute authorization to use that genetic material after death. Thus, careful consideration must be given to the person’s wishes and how best to reflect those wishes in drafting the definitions of “issue,” “children” and “descendants” in the person's plan.

Finally, it is important to note that only a few states, such as Illinois, New York and California, have laws addressing the property rights of posthumously conceived children in instruments other than wills. As many people dispose of their estates by means of trusts, beneficiary designations, and transfer on death deeds and accounts as well as wills, it is essential that all these documents properly address this issue in accordance with the relevant state law.

Postscript:Posthumously conceived children obviously result from the use of assisted reproductive technology. Many children are conceived this way during the lives of both of their parents. U.S. law ties the right of foreign born children to citizenship to a citizen parent and may require a DNA test. A recent case illustrates a problem. Two men married to each other, one a U.S. citizen, the other not, had twin boys by means of an anonymous egg donor and a Canadian surrogate who delivered in Canada. The birth certificates named both men as fathers. When they moved to California they expected their sons to be entitled to U.S. citizenship but the required DNA tests showed that one of the boys is not genetically related to his citizen father. That son was denied citizenship even though he has a U.S. father and U.S. twin brother. (There would not a have been a problem if the boys were delivered in the U.S.) In this case the U.S. father can sponsor his son as his "step-son" for a green card, try to adopt his own son or appeal to the Supremes on the grounds that denying the traditional presumption of paternity to a same sex father is discriminatory