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David Shayne is Consulting Counsel in theChicagooffice
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
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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