Inheritance Rights of Posthumously Conceived Children

Can a child conceived after the father's death inherit from him?

By , J.D.

It's long been the law that a child conceived before the father's death, but born after it, is treated like other offspring. For example, if there's no will, the child can inherit from the deceased father just like any other children of his. But what about the situation—made possible by frozen sperm and in vitro fertilization—when a child is conceived, not just born, after a parent's death? Is a child who is born years after his or her father's death entitled to part of his estate? Laws are just beginning to catch up to this new possibility.

The Supreme Court Weighs In

In the past few years, several women who had given birth to children conceived after the biological father's death applied for Social Security benefits on the children's behalf, based on the father's earnings record. The Social Security Administration denied their requests, and the cases started making their way through the federal courts. Some courts ruled in favor of the mothers; others ruled for the government.

The U.S. Supreme Court settled the uncertainty by ruling that children who are conceived after the death of their biological father, using frozen sperm, are not necessarily entitled to Social Security dependent's benefits. To be considered the deceased father's child for purposes of Social Security, the Court ruled, the child must be entitled to inherit from the deceased parent under state law. (Astrue v. Capato, May 21, 2012.)

As Justice Ginsburg wrote in her opinion, the case stemmed from tragic circumstances: a couple who planned to have children but discovered that the husband was suffering from cancer. Before beginning chemotherapy, he banked his sperm. The couple had one child, conceived naturally, during the husband's treatment; after he died, his widow used the frozen sperm and gave birth to twin girls about 18 months after the death.

When she applied for Social Security dependents' benefits for the girls, her claim was denied because the twins weren't considered the deceased father's children, for inheritance purposes, under Florida law. Appealing this ruling, the mother argued that federal law stated simply that a biological child of a deceased parent was entitled to benefits. But it's reasonable for federal law, the Court ruled, to use the state law's rule on who is considered a dependent child.

Law Tries to Catch Up With Science

Several states have recently changed their laws to address the situation of posthumously conceived children. Commonly, the new laws put a time limit on when a child who's conceived after the parent's death must be born in order to inherit. Otherwise, there would be the very real possibility that a child born many years after his parent's death would be legally entitled to inherit part of his estate—an administrative nightmare.

Under California law, for example, a child conceived after the father's death can inherit from him if the parent gave permission, in writing, for his genetic material to be used after his death to conceive a child and the child was in utero within two years after his death. (Cal. Prob. Code § 249.5.) Similarly, Iowa requires consent from the parent and that the child be born no more than two years after the parent's death. (Ia. Code Ann. § 633.220A.) Delaware requires written consent from the deceased parent, but there's no time limit. (13 Del. Code § 8-707.)

In response to the Court's ruling in Astrue v. Capato, more states will doubtless pass their own laws, making it clear when children will be entitled to property and other benefits by virtue of their relationship to a parent who passed away even before they were conceived.

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