While trying to come up with an interesting blog topic, I remembered reading about a case in New York which dealt with children who were born after the decedent died, using the decedent’s previously frozen sperm to conceive the children. With the number of children conceived through in vitro fertilization increasing every day (apparently the number of children conceived in this manner has doubled over the past decade alone), this is an issue which will likely arise more and more frequently in connection with estate planning. http://www.nytimes.com/2013/08/31/your-money/fertility-treatments-produce-heirs-their-parents-never-knew.html
Consider a couple who has had difficulty conceiving, and has ultimately decided to attempt to conceive through in vitro fertilization, but before they can undergo the process, one of the spouses tragically dies. What if the surviving spouse decides to utilize the embryos, and subsequently, two children are born as a result? To complicate matters, what if the couple previously had a child together? Would the two children who were conceived and born posthumously have the same inheritance rights as the child who was alive at the time that the decedent died? As with many things, the answers depend upon where you live.
In California, the legislature has enacted Probate Code section 249.5, http://law.onecle.com/california/probate/249.5.html, which sets forth the conditions under which children born posthumously can inherit. Among other things, if a child conceived and born after the death of a decedent can show, by clear and convincing evidence, that the decedent had a signed and dated writing specifying that his genetic material can be used for the child’s posthumous conception and that a person has been designated to control the genetic material’s use; assuming that the designated person gives appropriate and timely notice (as set forth more fully in the California Probate Code), and that the child is in utero within the proscribed time period, the child can be treated as if s/he had been born during the lifetime of the decedent for the purposes of determining rights to property. (This is merely a brief summary of some of the substantive portions of the applicable Probate Code section, and is not intended as legal advice. For a complete understanding of the section and applicable law, a qualified attorney should be consulted).
While this material will definitely not apply to everyone, it is important that those to whom it applies are aware of it. It will be interesting to watch how the Courts interpret the law on this issue in the future – it is continually evolving. If this issue is relevant to you or someone you know, please contact our offices to schedule a time to discuss it further.
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