Historically, determining a decedent’s heirs was easy – determine all of the decedent’s living family members on the date of decedent’s death and if decedent’s wife was pregnant on the date of his death, wait to see if the child is born alive. Now, however, science has provided us with the ability to freeze genetic material which provides for the possibility of conception long after decedent’s death – posthumously conceived children.
This technological advancement greatly outpaces our laws. The use and success of assisted reproduction has increased substantially over the years causing problems with inheritance laws.
Problems Presented
The possibility of posthumously conceived children presents many problems:
- Should a child conceived after the death of a parent inherit from that parent?
- Does it matter how long after the parent’s death the child is born?
- Does it matter if the deceased parent consented to the posthumous use of his/her genetic material?
- What if decedent had other children?
- What if decedent established a trust for those other children?
This is only a few of the inheritance questions raised by the possibility of posthumously conceived children.
State Law Overview
State law has not kept up with the technology of assisted reproduction:
- Thirty-three states do not have any statutory or caselaw guidance on the treatment of posthumously conceived children;
- Nine states do not recognize posthumously conceived children in any probate situation; and
- Eight states do recognize posthumously conceived children subject to a variety of conditions.
Minnesota Law
Minnesota is a state that does NOT recognize posthumously conceived children. In 2010, Minnesota revised its statute stating that posthumously conceived children have no right to inherit from the deceased parent’s estate. Consequently, in Minnesota a child must be in gestation prior to the parent’s death in order to inherit.
