Articles

Posthumously Conceived Heirs
Where the Law Stands and What to Do About It Now

By Susan N. Gary

Susan N. Gary is a professor of law at the University of Oregon School of Law and an associate articles editor of Probate & Property.

Is a posthumously conceived child an intestate heir? Will a child conceived posthumously be considered a descendant of the deceased parent? The answers to these questions remain uncertain. Cases in three states have answered the first question, in New Jersey and Massachusetts with a qualified yes and in Arizona with a no. In all three cases the underlying concern involved qualification for Social Security benefits and not the distribution of an intestate estate, but the court’s decision focused on whether the state’s intestacy statute would treat the child as an heir of the decedent. The Ninth Circuit recently reversed the Arizona holding on qualification for Social Security, but it did not directly address the intestacy question.

Thus far, courts have not had to construe language in a trust to determine whether a posthumously conceived child fits within the trust’s definition of “descendant.” A court will construe the term within the context of the document, and the testator’s intent may be different from the intestacy result. But, unless the trust specifically defines terms like “descendant” or “child,” the court may look to intestacy law for assistance in defining the terms. Interpretations of the intestacy rules will therefore likely affect construction of trust documents. Even if a trust document includes a definition of “descendant,” the definition may be ambiguous, given changes in reproductive technology.

Developments in reproductive technology present challenges to estate planners who must determine clients’ wishes in the face of new reproductive choices and then draft documents to carry out those wishes. 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 three states, 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. In all three cases twins were born to the mother, who then 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 in the appeals process was whether the children were intestate heirs of the fathers. The three cases address this question directly. The Ninth Circuit has now said that qualification as an intestate heir is not a requirement for qualification as a dependent under the Social Security Act, so it is unclear whether future Social Security cases will address the intestacy issue. Nonetheless, the question of how the intestacy rules should be applied will still arise both for the distribution of intestate estates and for the construction of terms like “heirs” and “descendants” in wills and trusts.

Kolacy

In the New Jersey case, In re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000), the mother requested a declaration that her daughters were intestate heirs of her deceased husband. The court agreed that they were. The court first considered a New Jersey statute that provides: “Relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.” N.J. Stat. Ann. § 3B:5–8. The court examined legislative history and concluded that the statute did not address whether children conceived after death could inherit. The legislature had not considered reproductive options that permit conception to occur after death, so in the court’s view the statute should not be construed to preclude such children from inheriting.

Reviewing New Jersey’s intestacy laws overall, 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.” Kolacy, 753 A.2d at 1262. The court found no concerns of that sort in the facts of the case because no intestate property existed and no other children existed. The court suggested in dicta that imposing time limits “and other situationally described limits” would be both fair and constitutional. Id.

Woodward

In the Massachusetts case, Woodward v. Commissioner of Soc. Sec., 760 N.E.2d 257 (Mass. 2002), the widow appealed the Social Security Administration’s denial of benefits to the U.S. District Court for the District of Massachusetts. That court certified to the Massachusetts Supreme Court the question of whether the children had inheritance rights under the Massachusetts intestacy statute. The court concluded that a child conceived posthumously could be a child under the intestacy statute, under specified circumstances. To be an intestate heir, the child must establish 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, although the court did not specify a time limit. In Woodward, the children were born two years after their father’s death. The court held that they qualified as intestate heirs.

Gillett-Netting

The most recent case, Gillett-Netting v. Barnhart, 231 F. Supp. 2d 961 (D. Ariz. 2002), rev’d, 371 F.3d 593 (9th Cir. 2004), comes from Arizona. At the district court level the court noted that under the Arizona intestacy statute a child was one who survived the decedent or was “in gestation” at the time of decedent’s death. The court concluded that to “survive” a decedent a person must be alive at the decedent’s death, with an exception for after-born children in gestation before decedent’s death. Therefore, said the court, a child who was not conceived until after decedent’s death could not be an heir. The statutory language differs in terminology but not intent from the New Jersey language considered by the court in Kolacy. Thus, the court’s reliance on the statutory language is squarely at odds with the approach taken in New Jersey.

On appeal, in Gillett-Netting v. Barnhart, 371 F.3d 593 (9th Cir. 2004), the Ninth Circuit reversed the district court’s decision and remanded the case. The Ninth Circuit’s decision rested on the court’s conclusion that legitimate children need not meet any additional requirement to be considered dependents under the Social Security Act. The court found that the two posthumously conceived children were the genetic children of the decedent and therefore were entitled to benefits. In the Ninth Circuit’s view, 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 the ways a child can establish the right to Social Security benefits is by showing that the child would be entitled to take an intestate share of the decedent’s property. The other two cases assumed that determining whether the child was an intestate heir was necessary to a determination of entitlement to survivor’s benefits. In contrast, the Ninth Circuit concluded that making a determination under the intestacy rules is necessary only if a question exists about the child’s parentage. 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. The court noted that Arizona parentage law does not deal specifically with posthumously conceived children, but the court assumed that they would be the children of their genetic parents.

The Ninth Circuit did not address the question of whether Arizona’s intestacy statute includes posthumously conceived children, but two footnotes suggest that the court disagreed with the lower court’s ruling that the statute does not include such children. Footnote 3 cites Woodward approvingly and does not mention the determination of the lower court that heard Gillett-Netting. Then in footnote 8 the court again cites Woodward and notes, “As a practical matter, in most cases legitimate children would be able to inherit under state intestacy laws, but they need not demonstrate their ability to do so in order to be entitled to child’s insurance benefits.” Gillett-Netting, 371 F.3d at 599 n.8 (emphasis in original). Of course, in most cases legitimate children are conceived before the death of a parent, but citing to Woodward again suggests approval of the result in that case.

Statutory Revisions to the Definition of Parent and Child

As the court in Kolacy noted, “it would be helpful for the Legislature to deal with these kinds of issues.” Kolacy, 753 A.2d at 1261. The Woodward court also commented that these questions “cry out for lengthy, careful examination outside the adversary process. . . .” Woodward, 760 N.E.2d at 272. A few states already have statutes that bear on the question of whether a deceased provider of genetic material can be a parent.

Uniform Parentage Act

The Uniform Parentage Act (2000, last amended in 2002) (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. UPA § 707. The comment to this section states that the purpose is “to avoid the problems of intestate succession which could arise if the posthumous use of a person’s genetic material leads to the deceased being determined to be a parent.” Four states, Delaware, Texas, Washington, and Wyoming, have already adopted the UPA; Colorado has adopted language similar to that in UPA § 707; and five additional states, California, Illinois, Maine, New Jersey, and Utah, are considering the Act.

Louisiana

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 his genetic materials by his surviving spouse. La. Rev. Stat. Ann. § 9:391.1. 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, to be considered a child of the decedent, the child must be born within three years of the decedent’s death. The current statute reflects an amendment enacted in 2003, when the legislature changed the time period from two years to three years.

California

California recently adopted a bill that provides for the distribution of property to a posthumously conceived child. 2004 Cal. Stat. 775 (signed by the governor on September 24, 2004). Under the new statute, 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. The act specifically precludes cloned children from qualifying as heirs.

Florida, Georgia, North Dakota, and Ohio

Florida, Georgia, North Dakota, and Ohio 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. Fla. Stat. Ann. § 742.17. The statute does not describe the specificity required in the will. Georgia revised its probate code in 1996 and considered the question of posthumously conceived children. The revised code limits inheritance to children “conceived prior to the decedent’s death . . . .” Ga. Code Ann. § 53-2-1. In North Dakota the 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. N.D. Cent. Code § 14–18–04. The effect of Ohio’s statute remains uncertain. The statute appears to preclude inheritance by posthumously conceived children, because it states: “Descendants of an intestate begotten before his death, but born thereafter, in all cases will inherit as if born in the lifetime of the intestate and surviving him; but in no other case can a person inherit unless living at the time of the death of the intestate.” Ohio Rev. Code § 2105.14. But Ohio enacted this statute in 1953, so it is unlikely that the legislature considered the issue of children conceived after the decedent’s death.

JEB Project

More legislatures will likely consider the question of posthumous conception, and the Restatement of Property (Third): Wills and Other Donative Transfers § 2.5 cmt. l (1998) supports a reconsideration of the inheritance rights of posthumously conceived children. 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 (“the JEB”) has begun a project that will ultimately result in model statutory language. The project will consider revisions to two sections of the Uniform Probate Code: Section 2–108, Afterborn Heirs, and Section 2–114, Parent and Child Relationship. The revisions will address a number of issues involving the definition of “children” for purposes of intestacy statutes. In addition to discussing the question of posthumously conceived heirs, the project will consider other issues raised by reproductive technology, adoption, and changing family structures. These other issues lie beyond the scope of this article.

Discussions by the JEB about posthumously conceived children will focus on creating guidelines as to when a posthumously conceived child will be considered an heir. The work will be informed by the Restatement of Property (Third): Wills and Other Donative Transfers § 2.5 (1998); Restatement of Property (Third): Wills and Other Donative Transfers §§ 14.8 cmt. h, 15.1 cmt. j (Tent. Draft No. 4, Mar. 25, 2004); the cases described in this article; UPA § 707; and a few articles that have examined these issues. A statutory solution will likely contain three requirements: (1) that the parent and child be genetically related, (2) that the parent consented to the use of his or her genetic material to create a child, and (3) that conception occurred within a specified or reasonable time after the parent’s death. In addition, the child must be born alive and survive at least 120 hours.

Proof of Consent. The specifics of the new requirements are complicated. A statutory solution should clarify the kind of proof necessary to establish consent to be treated as a parent. One issue is whether general consent to assisted conception is sufficient or whether consent to posthumous conception must be proved. UPA § 707 requires written consent to posthumous conception for a child to be treated as a child of the deceased parent. In contrast, the Restatement treats a child conceived posthumously as presumptively the child of the deceased parent if the deceased parent had consented to function as a parent and was prevented from doing so by death. Restatement of Property (Third): Wills and Other Donative Transfers § 14.8 (Tent. Draft No. 4, Mar. 25, 2004). Thus, under the Restatement a person who consented to assisted reproduction with the intention of functioning as a parent will be treated as a parent regardless of whether the person contemplated posthumous conception. Id. cmt. h.

A second consideration is whether to require written consent or whether consent can be shown by behavior. UPA § 707 requires that consent be in writing. A requirement of written consent avoids the problem of relying on testimony of others to determine whether the decedent, who can no longer testify, gave consent. But written evidence of consent may not often exist, particularly if the surviving parent must show that the decedent consented to posthumous conception. All three posthumous conception cases contain references to testimony by the surviving parent of the decedent’s agreement that the surviving parent could attempt to conceive after the decedent’s death, but all three cases lack evidence of written consent. Gillett-Netting, 231 F. Supp. 2d at 963; Woodward, 760 N.E.2d at 271 n.24; Kolacy, 753 A.2d at 1263. After considering the facts of these three cases, the drafters of the Restatement worried that the UPA approach could lead to unjust results. Restatement of Property (Third): Wills and Other Donative Transfers § 14.8, Reporter’s Note 4 (Tent. Draft No. 4, Mar. 25, 2004). For that reason the Restatement does not require written proof of consent.

Time Limit. A decision on the time limit to impose requires balancing the need for a timely disposition of an intestate estate with the need to give a surviving parent adequate time to make the difficult decision about whether to attempt posthumous conception. A further issue is that artificial conception can be a lengthy process. A surviving parent may attempt to become pregnant but may not succeed on the first try. The Restatement provides that for determining whether a child is a member of a class for purposes of a class gift (for example, a gift to “descendants”), the time permitted will be a “reasonable time” following the deceased parent’s death. Restatement of Property (Third): Wills and Other Donative Transfers § 15.1, cmt. j (Tent. Draft No. 4, Mar. 25, 2004). A proposal drafted by Ronald Chester provides for a fixed time limit for an intestate distribution. The proposal requires that a request to determine the status of a posthumously conceived child be filed in probate court within three years of the decedent’s death. The request can be filed while the child is in gestation, and, if so, a determination of the child’s status will be made after the child is born. Ronald Chester, Posthumously Conceived Heirs Under a Revised Uniform Probate Code, 38 Real Prop. Prob. & Tr. J. 727 (2004).

Interpreting Existing Documents

For estate planners, the interpretation of an intestacy statute is significant for the construction of wills and trusts. If a document does not provide an adequate definition, a court will look to intestacy law for assistance in determining the meaning of terms like “child” and “descendant.” In Oregon, for example, a statute specifically states that those terms will include “any person who would be treated as so related for all purposes of intestate succession unless the will, trust or other instrument establishes a contrary intent.” Or. Rev. Stat. § 112.195. The judge in Kolacy noted that one reason a determination of their status as heirs was important for the two girls in that case was that “[t]heir status as his heirs could also be significant in determining their rights under the wills of their father’s relatives.” Kolacy, 753 A.2d at 1260.

Restatement (Third)

No reported case has addressed the question of whether the term “descendants” used in a will or trust includes posthumously conceived descendants. But, in recent revisions, the Restatement of Property (Third): Wills and Other Donative Transfers has taken a position on the question. Chapter 14 of the Restatement provides presumptive rules for the meaning of class-gift terms like “descendants” and “children.” Section 14.8 of the Restatement states as follows:

Unless the language or circumstances indicate that the transferor had a different intention, a child of assisted reproduction is treated for class-gift purposes as a child of a person who consented to function as a parent to the child and who functioned in that capacity or was prevented from doing so by an event such as death or incapacity.

Restatement of Property (Third): Wills and Other Donative Transfers § 14.8 (Tent. Draft No. 4, Mar. 25, 2004).

This section provides rules for any child born through assisted reproduction and specifically contemplates a child conceived posthumously. Comment h explains that the section treats a decedent as a parent “if the circumstances of assisted reproduction contemplated that the decedent would function as a parent to the child, but death intervened to prevent the decedent from functioning in that capacity.” The Restatement addresses the situation presented in Gillett-Netting, Woodward, and Kolacy. In all three cases a man stored sperm in the hope that he would survive cancer and that he and his wife could then conceive a child. That is, he intended to function as a parent. In each case death prevented the man from functioning as a parent. The Restatement concludes that he should be treated as the parent of a child conceived by his widow after his death. The comment notes that in each of the three cases the surviving parent testified that her husband wanted her to attempt to conceive a child even if he died. The Restatement does not require evidence of consent to conceive posthumously but only consent to function as a parent.

Questions of Intent

Statutory reform in the intestacy context will likely take many years, and in the meantime trustees and courts may be faced with construction questions. The Restatement will be useful, but without state-specific guidance trustees and courts will continue to face difficult decisions. Even if a particular state resolves the issue for intestacy purposes, either by case law or by statute, the construction inquiries will not end.

For documents executed before a legal clarification occurs, the question of intent will remain difficult to ascertain. In the adoption context, courts were initially reluctant to interpret old documents to include adopted descendants, when the laws in effect at the time the documents were executed did not include adopted children as descendants. In attempting to discern the settlor’s intent, courts concluded that the settlor used a term like “descendant” with an understanding of the legal definition at that time. Of course in reality the settlor likely did not contemplate whether or not adopted children should be included, just as settlors today do not consider whether to include posthumously conceived children. Nonetheless, some courts concluded that construction should depend on the legal rules in effect at the time of execution.

In Illinois, the legislature adopted a statute indicating that an adopted child will be treated as a child for purposes of property rights unless clear and convincing evidence demonstrates a contrary intent. 755 Ill. Comp. Stat. 5/2–4(f). An adopted descendant brought a construction case shortly after the legislature adopted the statute. The court held that the use of the term “descendants” in the document provided evidence of an intent to exclude adopted children. Continental Bank, N.A. v. Herguth, 617 N.E.2d 852 (Ill. App. Ct. 1993). A second case followed this reasoning at the district court level, but the appellate court and ultimately the Supreme Court of Illinois held that the use of the term “descendants,” without more, did not show intent to exclude adopted children. First Nat’l Bank of Chicago v. King, 651 N.E.2d 127 (Ill. 1995). The Illinois cases demonstrate the difficulty of interpreting documents when the law and cultural norms change.

The construction issue for posthumously conceived children differs from that of adopted children, because the law currently does not specifically exclude posthumously conceived children. Indeed, two of the first three cases considering the question have construed existing statutes to include such children. Nonetheless, a settlor using the term “descendants” some years ago probably did not consider whether the term should include a posthumously conceived child. Further, a settlor might be more likely to want to treat as a descendant a child adopted by the settlor’s son before the son’s death than a child conceived after the son’s death. Another settlor might consider the genetic connection sufficiently important to make the posthumously conceived child a family member for purposes of distributions from the trust. Determining the actual intent of a “stranger to the conception” is likely to be impossible, so courts will look to the legal meanings of “descendants” as determined in intestacy statutes and to the guidance provided by the Restatement.

How Long to Wait

In addition to determining whether the term “descendants” includes posthumously conceived children, timing issues will complicate trust administration. Consider a trust created in 1970 that provides a life estate for A and directs the trustee to distribute the trust on A’s death “to A’s descendants.” If A dies in 2005 leaving frozen sperm, must the trustee wait to determine whether additional descendants are born? If the state intestacy statute includes a posthumously conceived child as an heir if the child is born within three years of the parent’s death, then the trustee might have to wait three years to make the distribution from the trust. If the intestacy statute is silent and no court has ruled on the question, then the trustee may need to obtain court instructions before making a distribution. If the frozen genetic material at issue belonged to a predeceased child of A, then the time period presumably began to run at the death of the predeceased child. Again, the question of how long to wait remains.

Drafting

Class Gifts

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. A typical will form might define children to include “any child born to or adopted by me, before or after my death.” As in the intestacy statutes, the form’s intent is presumably to include children in gestation before the parent’s death. 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. If the testator prefers not to include posthumously conceived children, then the definition can be modified by placing a time limit on the birth of the after-born child. For example, the provision could state: “any child born to or adopted by me, before or within one year after my death.” Because of uncertainties about the length of gestation, limiting the provision to children born within 10 months after death is probably safe, but using a time period shorter than 10 months could exclude a child conceived before death.

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. The lawyer can also include either a time limit on the posthumous birth or a direction that the child must be born “within a reasonable time” after the parent’s death so that the estate will not be held in limbo indefinitely.

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. The time limit, whether “reasonable” or a fixed period of years, can be longer than the period being considered for intestacy statutes, but some outside limit will provide closure for the surviving family members or other beneficiaries and will provide for better trust administration. The issues involved in setting the time limit differ somewhat from the concern of creating a time limit for an intestacy statute or for distribution under a will, but in all situations the time limit selected must balance the interests of living beneficiaries with the interests of beneficiaries who may or may not later exist.

Stranger to the Conception

A lawyer advising a potential parent has an easier task than the 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. If the document uses the term “descendants” in making a gift, the issue may arise, and 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 then appropriate language in the document. Simply providing for descendants “born before or after the death of the parent who is a descendant of mine” raises the question of how long to wait before determining who the descendants are. Adding a time limit for the birth of a child after the death of a parent or indicating that a child must be born “within a reasonable time” after the parent’s death will help. Of course, a client may prefer to include only children who are actually in gestation before the death of the parent.

Anti-lapse Statute

In addition to worrying about terms like children and descendants, lawyers must consider other situations in which the question of posthumously conceived children may occur. An outright gift to an individual may be subject to an anti-lapse statute. If the named beneficiary predeceases the testator, the gift to the beneficiary lapses (will not be made). Unless the will provides for an alternative disposition, the state’s anti-lapse statute may provide for a substitute gift. Anti-lapse statutes vary in their coverage, but typically cover descendants of the decedent’s grandparents. See, e.g., Unif. Prob. Code § 2–603 (1990); Restatement of Property (Third): Wills and Other Donative Transfers § 5.5 (1998). Thus, if a testator’s will devises the family vacation home to the testator’s sister and if the sister predeceases the testator, an anti-lapse statute will likely provide a substitute gift to the sister’s “descendants.” Specifying who should receive the vacation house in the event the sister predeceases is preferable to relying on the anti-lapse statute. If the client wants the house to go to the sister’s “children,” then addressing the issue of posthumous conception will be appropriate.

Definitional Paragraph

From a drafting standpoint, addressing the question of posthumous conception, and indeed of descendants added to the family through other reproductive technologies or through adoption, can be done in one definitional paragraph. That approach will address the issue any time the term “descendant” is used throughout the document, but it will not address situations like the application of the anti-lapse statute when the term is applied to the document but does not appear in the document itself. Therefore, the lawyer must take care to address all substitute gifts so that the document itself will reflect the client’s intention.

Conclusion

The brave new world of reproductive technology has created wonderful opportunities for parents and families. At the same time, the new possibilities for procreation create challenges for legislatures, judges, and estate planners. Thinking through the possible issues and talking through the options with clients will help ensure that documents carry out the intent of the clients and that later interpretation will not have to rely on statutes to find presumed intent.

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