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As technology races ahead in the development of new forms of assisted reproductive technology, the courts are struggling to keep up.  From a probate litigation standpoint, the question is what legal rights – if any – does a child both born and conceived after the father’s death have?  In an article entitled Posthumous Reproduction, Prof. Charles P. Kindregan, Jr., of Suffolk University Law School in Boston, described 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.

In Florida, F.S. 732.106 tells us that a child conceived prior to a parent’s death but born after the parent’s death has the same inheritance rights as any other child, be it as an intestate heir or as a beneficiary of the parent’s will.

Posthumous Conception

On the other hand, F.S. 742.17(4) tells us that a child both conceived and born after the parent’s death, known as “posthumous conception,” can qualify as a beneficiary of the parent’s will if “the child has been provided for by the decedent’s will.” In other words, in cases involving posthumous conception the after-born child gets nothing unless there’s a clause in a will saying otherwise. There’s no equivalent statute for trusts, but logically the same rule should apply.

As of the date of this blog post we have no Florida appellate-court authority giving us any guidance on how a will or trust should be construed in a case involving a posthumously conceived child. Fortunately we now have an excellent opinion out of New York to help fill that gap, as discussed in DEFINITIONS OF CHILDREN AND DESCENDANTS: CONSTRUING AND DRAFTING WILLS AND TRUST DOCUMENTS. Here’s an excerpt:

Although most of the cases have been brought to determine eligibility for social security benefits, at least one case determined that posthumously conceived children were children of their deceased father for purposes of a trust. In [In re Martin B., 841 N.Y.S.2d 207 (N.Y. Sup. Ct. 2007)], the settlor created seven trusts for his wife and “issue.” During his wife’s life, the trustee had the power to distribute principal among the issue, so the trustee brought a construction proceeding to determine whether grandchildren conceived posthumously were issue within the meaning of the terms of the trust.

When the settlor died, his wife and one of his two sons survived him. His other son, James, died of Hodgkins Lymphoma a few months before his father. When James was diagnosed, he was married but had no children. He deposited sperm, with instructions that it be cyropreserved and that if he died, it should be held subject to his wife’s direction. James died January 13, 2001, and a few years later his wife conceived two children through in vitro fertilization using the cyropreserved sperm. The two boys were born October 15, 2004 and August 14, 2006.

The surrogate’s court reviewed New York’s statutes relating to inheritance by posthumously conceived children as takers under intestacy or under wills. New York law limits inheritance rights to children conceived during the decedent parent’s life, both for intestacy purposes and for purposes of a will. Although these statutes did not include the posthumously conceived grandchildren, the court did not find the statutes dispositive with respect to the trusts. The important consideration, according to the court, was the settlor’s intent when he created the trusts. The court conceded that the settlor would not have imagined in 1969 that his son might have children related to him genetically but conceived after his death. However, the court noted, “the absence of specific intent should not necessarily preclude a determination that such children are members of the class of issue.” The court used the Restatement of Property as support for its finding that the children were members of the class within the terms of the trust. The court quoted the [RESTATEMENT (THIRD) OF PROP.: WILLS AND OTHER DONATIVE TRANSFERS § 14.8 (2003)] as follows:

[U]nless the language or circumstances indicate that the transferor had a different intention, a child of assisted reproduction [be] treated for class-gift purposes as a child of a person who consented to function as a parent to the child and who functioned in that capacity or was prevented from doing so by an event such as death or incapacity.

The court concluded that the settlor “intended all members of his bloodline to receive their share.” The court held that the two boys were issue and descendants for purposes of the trusts and pointed out the need for the legislature to address issues raised by biotechnology.