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Advancements in assisted reproductive technology have created a class of heirs that would have been unimaginable to prior generations: children both conceived and born after one, or maybe even both, of their genetic parents has died. Falling under the general umbrella term of “posthumous conception,” they are the product of breakthroughs dramatically extending the amount of time the average human has to reproduce (live births have been reported using embryos frozen for over 30 years).

As the science of assisted reproductive technology fundamentally redefines what it means to be an “afterborn heir,” courts find themselves grappling with the inheritance rights of posthumously conceived children, including as beneficiaries of trusts and as intestate heirs. In a case of first impression we now have an opinion of the Florida supreme court ruling for the first time on whether a posthumously conceived child was “provided for” under a pre-deceased father’s will.

Inheritance rights of posthumously conceived children

Under Florida law the only way a posthumously conceived child can inherit from his or her parent’s estate is if the child was “provided for” in the parent’s will; they’re categorically excluded as intestate heirs. We get to this outcome based on two statutes. First, there’s F.S. 732.106, which tells us that afterborn intestate heirs only include children conceived before a parent’s death.

732.106 Afterborn heirs.—Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.

Second, there’s F.S. 742.17(4), which tells us that a posthumously conceived child may inherit from his or her parent if “the child has been provided for by the decedent’s will.”

742.17 Disposition of eggs, sperm, or preembryos; rights of inheritance. … (4) A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.

By the way, note that the line of demarcation under F.S. 742.17(4) isn’t the date of “conception” (a slippery term given today’s evolving technology), but is instead the date of “transfer” to a woman’s body of the decedent’s “eggs, sperm, or preembryos.” While the date of conception may be open to interpretation, the date of transfer is not. (Excellent statutory drafting.)

Case Study

Steele v. Commissioner of Social Security, — So.3d —-, 2024 WL 630219 (Fla. February 15, 2024)

This case involved a claim for federal Social Security Survivor benefits for a posthumously conceived child. The child’s father was a Florida resident at the time of his death, so the case turns on the child’s inheritance rights under Florida law. Here are the key background facts as provided by the court:

Philip and Kathleen Steele married in 1997. During their marriage, they had a son—conceived through in vitro fertilization. Following his son’s birth, Mr. Steele submitted additional sperm samples to a fertility clinic.

Thereafter, with the assistance of a lawyer, Mr. Steele prepared a will. At the outset, Mr. Steele defined his family to encompass his spouse, his living children, and any later-born or adopted children. Elsewhere in the will, Mr. Steele addressed the disposition of his property. He devised to his wife all tangible personal property, the homestead property, and the residue of his estate. If, however, his wife died before him, his children “then living” would inherit his tangible personal property.

Mr. Steele died roughly a year and a half after executing the will. Following Mr. Steele’s death, P.S.S. was conceived by in vitro fertilization using Mr. Steele’s deposited sperm samples.

What does the phrase “provided for” mean?

This case required the Florida supreme court to construe the statutory text of F.S. 742.17(4) to determine if the statue’s use of the phrase “provided for” means the pre-deceased parent’s will (a) simply addressed the possible contingency of a posthumously conceived child or if (b) the statute’s use of this phrase means the child has to actually inherit something under the will.

As I’ve previously noted, we’re living through a “textualist moment” in Florida’s courts, a point our supreme court emphasized once again in this case as follows:

As expressed in our cases involving statutory interpretation, we are committed to the supremacy-of-text principle—that is, “[t]he words of a governing text are of paramount concern” to us, and “what they convey, in their context, is what the text means.” Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353, 354 (Fla. 2023) (alteration in original) (quoting Levy v. Levy, 326 So. 3d 678, 681 (Fla. 2021)). In applying this principle, we begin with the text of the statute …

Against this backdrop the court concluded that “provided for” means you have to actually inherit something under the will.

Therefore, based on our analysis above, we conclude that “provided for” in section 742.17(4) means that the testator actually left something to the posthumously conceived child through the will. Or, put another way, the child must have some inheritance right under the will. As part of this requirement, the will must show that the testator contemplated the possibility of a child being conceived following his or her death.

Did the decedent’s will “provide for” his posthumously conceived child? NO

It’s common for wills to provide for a testator’s then-living children as well as any later born children. Is that kind of generic reference to after-born children enough to encompass a posthumously conceived child? Nope, so saith the court:

No part of the will acknowledges the possibility of children being conceived after Mr. Steele’s death. To be sure, the will references afterborn or adopted children. But that mention of later-born children, as we read Mr. Steele’s will, refers most naturally to children born after his will was drafted but conceived before his death, i.e., when the dispositional portions of the will create vested rights. See § 732.514, Fla. Stat. (2019); see also § 732.106, Fla. Stat. (2019) (defining afterborn heirs in a similar fashion). Thus, this reference to later-born children would not cover P.S.S., who was conceived after Mr. Steele’s death.

But, even if we found that post-death conception was in some generic sense contemplated by Mr. Steele, P.S.S. could not have received anything under the will. Mr. Steele’s will conveyed all relevant property to Ms. Steele. In the event that Ms. Steele had died before Mr. Steele, the tangible personal property would have been distributed to his “then living children.” By its terms, this fallback provision only applied to children living at the time Mr. Steele died and necessarily excluded any posthumously conceived children, like P.S.S. Therefore, as it was impossible for P.S.S. to inherit anything from the will, it is clear that Mr. Steele did not provide for P.S.S. as contemplated by section 742.17(4).

Class gifts and posthumously conceived children

The pressing question raised by this case, and others like it, is how should we draft and construe class-gift clauses in a world that now includes posthumously conceived children. That isn’t a statutory construction question, it’s a drafting and will/trust interpretation question. Here’s how Prof. Pennell framed the class-gift problem as applied to posthumously conceived children in his write up of the Capato case:

If D leaves DNA in the freezer and that DNA is used postmortem with the requisite permission to produce a child, it seems relatively clear that D intended that child to be a beneficiary of D’s estate. But what about relatives of the DNA provider? Assume, for example, that the provider’s ancestor created a trust for the provider’s benefit for life, remainder to the provider’s descendants. Does the settlor intend to give anyone (the provider’s surviving spouse or anyone else) a blank check to create more remainder beneficiaries? That question was answered in the affirmative by In re Martin B. (Sur. Ct. 2007), 841 N.Y.S.2d 207.

The question whether a provider intends for a posthumously conceived child to be treated as their own is easier than the question whether an ancestor intends for someone else to be able to use the DNA to create more beneficiaries of the ancestor’s trust. Indeed, if clients were asked the question, “would you want your daughter-in-law to be able to make herself pregnant with your son’s frozen sperm, to create more beneficiaries of your trust,” would their answers predictably be the same as if they were asked “do you want your son-in-law to be able to withdraw your daughter’s frozen egg (or their frozen embryo) and find a surrogate mother to make more beneficiaries of your trust”? There is likely no way to predict a typical client’s reaction to either question, nor to predict whether any client’s response would distinguish between a daughter-in-law using the son’s sperm and bearing the child herself as opposed to a son-in-law finding a surrogate mother to carry the daughter’s child. . . .

As all this shakes out, it may be wise for estate planners to draft for these issues, to articulate their clients’ intent in each regard. Particularly because state law is in flux, because one-size-fits-all legislation may not reflect a client’s intent, and because conflict of laws issues may inform a court’s reliance on the law of a different state.

Until, as Prof. Pennell puts it, “all this shakes out,” there’s only one way to deliver a semblance of certainty to estate planning clients (as well as giving voice to their personal values): good drafting. When it comes to good drafting, no man’s an island. I don’t care how good you are, it never hurts to read what other thoughtful trusts and estates lawyers are drafting. One such attorney is Bruce Stone, who published a short piece entitled Drafting for Flexibility in Dynasty Trusts in which he provides sample trust language addressing class gifts to posthumously conceived children. Bruce’s clause probably won’t be the last word in drafting for this contingency, but it’s a solid start. Stay tuned for more …