March 01, 2005

Posthumously Conceived Heirs (2005, 19:02)

Posthumously Conceived Heirs Where the Law Stands and What to do About it Now

Probate and Property, March/April 2005, Volume 19, Number 2

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.

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