GPSolo Magazine - September 2005

Posthumously Conceived Heirs

Eventually statutes will provide rules detailing when a posthumously conceived child will be treated as an heir. But, even if a state adopts clearer guidelines, estate planners must still draft to accommodate individual preferences. Doing so requires asking new questions and rethinking existing language in will and trust forms.

Intestacy cases. Courts in Massachusetts, New Jersey, and Arizona have considered whether the state intestacy statute includes a posthumously conceived child as an intestate heir of the child’s parent. In each of the cases, a husband stored frozen sperm before undergoing treatment for cancer. After the husband’s death, his widow used artificial insemination or in vitro fertilization to become pregnant (with twins in all three cases). In each case, the mother applied for Social Security survivor benefits for her children as dependents of the deceased father. When the Social Security Administration denied the claims, one issue on appeal was whether the children were intestate heirs of the fathers.

In the New Jersey case, In re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000), the court found a general legislative intent that children should inherit from their parents and, through their parents, from other relatives. The court then stated that if a child is genetically the child of the parent, the child should be the heir of the parent unless such a determination would “unfairly intrude on the rights of other persons or would cause serious problems in terms of the orderly administration of estates.”

In the Massachusetts case, Woodward v. Commissioner of Soc. Sec., 760 N.E.2d 257 ( Mass. 2002), the state’s supreme court concluded that a child conceived posthumously could be an heir under the intestacy statute, under specified circumstances. For the child to be an intestateheir, it must be established that the child and parent were genetically related and that the deceased parent had affirmatively consented to the posthumous conception and support of any resulting child. The court indicated that time limits could preclude a claim.

In the Arizona case, Gillett-Netting v. Barnhart, 231 F.Supp. 2d 961 (D. Ariz. 2002), rev’d, 371 F.3d 593 (9th Cir. 2004), the Ninth Circuit concluded that making a determination under the intestacy rules is necessary only if a question exists about the child’s parentage. A child whose parentage is disputed will be deemed the child of the decedent if the child can meet one of the requirements of 42 U.S.C. § 416(h), one of which is to show that the child would be entitled to take an intestate share of the decedent’s property. In Gillett-Netting, the fact that the children were genetically related to the decedent and the decedent was married to their mother was sufficient to make the children legitimate children under Arizona law. Thus, the Ninth Circuit did not need to reach the intestacy question.

Statutory revisions to the definition of parent and child. A few states have statutes that bear on the matter. The Uniform Parentage Act (UPA) treats a person who has provided genetic material but dies before the placement of the eggs, sperm, or embryos as a parent only if the person consented in writing to be treated as a parent if the assisted reproduction occurred after the person’s death. Delaware, North Dakota, Texas, Utah, Washington, and Wyoming have adopted the UPA, and Colorado has adopted a similar statute.

Louisiana ’s statute defining parent and child states that a decedent will be considered a parent if the decedent left written consent to the use of hisgenetic materials by hissurviving spouse. The statute does not clearly require that the consent specify posthumous use but does refer to use by the decedent’s “surviving spouse.” The statute includes a time restriction, requiring that the child must be born within three years of the decedent’s death.

California adopted a bill that provides for the distribution of property to a posthumously conceived child. The posthumously conceived child will be a child of the deceased parent if (1) the decedent left written consent to posthumous conception, signed by the decedent and at least one witness; (2) the genetic material was used by the spouse or registered domestic partner of the decedent or by someone named by the decedent in the written consent; (3) written notice that genetic material is available for posthumous conception was provided within four months following the decedent’s death to a person with the power to control the distribution of property; and (4) the child was in utero within two years of the decedent’s death.

Florida , Georgia, and North Dakota each places limits on inheritance following posthumous conception. In Florida, a child conceived posthumously can inherit from a deceased parent only if the parent provided for the child in the parent’s will. Georgia’s revised code limits inheritance to children “conceived prior to the decedent’s death. . . .” North Dakota’s parentage statute states that a person who provides genetic material but dies before the conception of a child using that material will not be considered the child’s parent.

To assist legislatures that want to revise their intestacy statutes to address the intestacy rights of posthumously conceived children more specifically, the Joint Editorial Board for Uniform Trust and Estate Acts (JEB-UTEA) has begun a project that will ultimately result in model statutory language. The JEB-UTEA has asked the National Conference of Commissioners on Uniform State Laws to appoint a drafting committee to address this issue as well as other issues affecting the definition of parent and child under the intestacy statutes.

Discussions by the JEB-UTEA about posthumously conceived children will focus on creating guidelines as to when a posthumously conceived child will be considered an heir. Although it is premature to predict how that project will come out, a statutory solution will likely be influenced by an analysis of various sources, including the UPA, statutes from various states, and articles written on the subject.

Drafting. Given the potential difficulties for those charged with distributing property to “descendants,” clarifying the intent of the testator or the settlor of a trust takes on new significance for estate planners. With the developments in assisted procreation, the possibility of posthumous conception or the existence of frozen embryos at death should be considered at the drafting stage.

A client who has stored or plans to store genetic material should address the question of posthumous conception specifically in his or her will. The lawyer can include a provision either including or excluding any children created using the material after the testator’s death. If the client wishes to provide for the possibility of posthumously conceived children, creating a trust for their benefit will allow the estate to close more quickly than it might otherwise. The trust should provide for alternative beneficiaries who will have interests in the trust either with the posthumously conceived children or in the event no children are later born. The trust should also provide a time limit for qualification of posthumously conceived children as beneficiaries, either a “reasonable time” or a period of years.

A lawyer advising a potential parent has an easier task than a lawyer advising someone whose beneficiary may procreate posthumously. The possibility that a beneficiary will have a child posthumously always exists, but a client will not likely imagine the possibility. The issue may arise if the document uses the term “descendants” in making a gift. If the document is a trust that continues for an extended period of time, the situation may occur many years after the settlor’s death. Planning for situations that are unlikely but possible requires a sensitive discussion with the client and appropriate language in the document.

Susan N. Gary is a professor of law at the University of Oregon School of Law. She can be reached at sgary@law.uoregon.edu.

For More Information About the Real Property, Probate and Trust Law Section

- This article is an abridged and edited version of one that originally appeared on page 32 of Probate & Property, March/April 2005 (19:2).

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