What About Children Conceived After Death?

In this post the Florida Probate Litigation Blog asks:

“[W]hat legal rights – if any – does a child both born and conceived after the father’s death have?”

Juan Links to an article entitled Posthumous Reproduction, by Prof. Charles P. Kindregan, Jr., of Suffolk University Law School in Boston, who describes the legal landscape this way:

Until very recently, legal issues surrounding posthumous children focused on inheritance rights of a child who was conceived while the biological parents were alive with the child being born after the death of the father. The law largely deals with this problem by providing for the legal heirship of children born within the normal gestational period following the death of the father. But the development of such technologies as intrauterine insemination, in vitro fertilization, surrogacy, cryopreservation of gametes and embryos and (someday) human reproductive cloning have created the potential for an entirely different set of legal issues. These issues are not based on the birth of a child after the death of the father when the child is conceived prior to the father’s death. Instead, the new reality is based on conceiving a child or implanting a preexisting embryo after the death of a genetic parent or parents. This article explores some of the evolving issues created by the use of cryopreserved gametes and embryos after the death of one or both gamete providers.

I am unaware if Ohio has a statute governing children conceived after the death of the father and would surmise that “In the absence of guiding legislation, courts are forced to fall back upon general rules of construction within the probate and trust context.”

That appears to be what a court in New York recently did, as reported on in Sons Conceived In Vitro Ruled Covered by Trusts, when it ruled that two children conceived and born after the father’s death were nonetheless intended beneficiaries of the father’s trust. Fascinating Stuff!

Three years after James B. died of Hodgkin’s lymphoma, his wife Nancy gave birth to the couple’s first son, who was named James in honor of his late father.

Two years later — nearly six years after her husband’s death — Nancy gave birth to their second son, Warren.

Now, as the boys approach their first and third birthdays, their in vitro conception has raised an issue of first impression that New York’s Legislature did not consider, for obvious reasons, when it first drafted the Estates, Powers and Trusts Law in the early 1960s.

Specifically, in Matter of Martin B., Manhattan Surrogate Renee Roth had to decide whether the “issue” and “descendants” provided for in seven 1969 trusts includes children conceived with the cryopreserved semen of the grantor’s late son — James B., as he is known in court papers — whose death preceded his own sons’ conception.

Surrogate Roth ruled that the grantor’s intent is controlling and that, although his trusts were understandably silent on the subject, they appeared to favor inclusion of young James and Warren among his “issue” and “descendants.”

“[The] instruments provide that, upon the death of the Grantor’s wife, the trust fund would benefit his sons and their families equally,” Surrogate Roth wrote. “In view of such overall dispositive scheme, a sympathetic reading of these instruments warrants the conclusion that the Grantor intended all members of his bloodline to receive their share.”

* * * * *

[Surrogate Roth] noted that the New York Legislature has addressed the same issue vis-à-vis wills: A recent amendment to the Estates, Powers and Trusts Law excludes “post-conceived” children from sharing in a parent’s estate, absent a contrary provision.

That amendment, however, is “applicable only to wills and to ‘after-borns’ who are the children of the testators themselves,” Surrogate Roth wrote. “Moreover, the concerns to winding up a decedent’s estate differ from those related to identifying whether a class disposition to a grantor’s issue includes a child conceived after the father’s death but before the disposition became effective.”

Written By:Jeffrey S. Goethe On August 3, 2007 11:20 AM

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