In Case of Kids
Estate Implications of Posthumously Conceived Children

Procreation is both a biological necessity and an emotional desire. Without children, our species ends and both nature and nurture are included in our survival instincts, Science advances significantly faster than society’s ability to adapt. Laws and policies frequently lag behind our modern capabilities and childrearing is not exempt from the reality of Posthumously Conceived Children. 1

The estate implications of In Vetro Fertilization (IVF) and similar medical procedures include the disposition and use of genetic materials post-mortem. What are the associated property rights of the deceased as it relates to his or her genetic materials? What is the status of children conceived post-mortem? Should children born from the same genetic materials be treated differently because conception and birth were post-mortem rather than pre-mortem?

 
Courts, legislatures, heirs, widows, widowers and estates are facing these and similar questions. These are difficult questions to contemplate and even more difficult to answer. Our hodgepodge of state-based regulations leads to a cobbling of general procedures and case law as it relates to the deceased and beneficiaries.
 
As with any new area, different cases lead to different results, and when it comes to assisting our clients with their wealth preservation techniques, surprises create financial and psychological risks. Courts have rendered different conclusions based upon their jurisdiction and the associated and applicable state law. There are at least two sponsored model agreements that have been proposed with limited adoption.
 
Documenting the desires of the deceased, in advance, with forethought and thoughtful deliberations facilitates the post-mortem residual determinations. I have summarized three distinct cases that highlight this complexity; estate advisors should consider these when discussing reproductive materials with their clients.
 

Case 1: William Kane, Los Angeles

William Kane (Hecht v. Superior Court (Kane) (1993), 16 Cal. App. 4th 836) was a 48-year-old divorced man living with his 38-year-old girlfriend; Kane had two adult children from a previous marriage. During the fall of 1991, Kane deposits 15 vials of sperm into a cryogenic sperm bank. He specifically instructs the sperm bank that his deposits are for the benefit of his girlfriend and were to be released only to her or her physician for the purpose of conception. Kane concurrently updates his will, leaving limited property to his adult children (from a previous marriage) and the residual of the estate to the girlfriend; Kane specifically identifies the cryogenically preserved sperm in his will.
 
Approximately 30 days after his updated will and genetic deposits, Kane commits suicide. The will is probated and the adult children protest the assignment of the vials and the case is tried in Probate Court. The trial court determines that the genetic materials are not assignable property, rules for the children and orders the vials destroyed. Upon appeal, the trial court is reversed. The Appellate Court believes that there was a property interest at the time of death, that the wishes of the deceased were well known and reverses the trial court and rules for the girlfriend.
 

Case 2: Woodward, Supreme Judicial Court of Massachusetts

Woodward (Woodward v. Comm’r of Soc. Sec, No. SC-08490, 2002 Mass) involves a young couple where the husband has testicular cancer and, knowing that chemotherapy will likely destroy any reproduction capabilities, he deposits sperm for future children. The husband dies at age 28. The couple had a child before his death.
 
Approximately 18 months after his death, the widow becomes pregnant and delivers a child approximately 27 months post-mortem. She applies for Social Security benefits and is denied. Upon appeal, the federal district court remanded to the Judicial Supreme Court of Massachusetts for determination of inheritance and probative rights and assertions.
 
The Judicial Supreme Court rules that the state has three compelling issues:

1. The state has an obligation to see that all children of a family are treated equitably and legislative intent is clear, albeit the Legislature was silent as to the nature or timing of conception. Since there was no dispute as to who the “parents” were, the children conceived post-mortem should not be relegated to second-class citizenship.
2. The state desires clarity on estate and probate matters as they relate to heirs, creditors and administration. That there has to be a beginning and end to the transition.
3. The state has an interest in protecting the privacy of its citizens and must support the widest possible choices and options as it relates to reproduction.

 
To resolve these matters, the court provides a two-pronged test:

1. What are the genetic ties between the parties? Effectively, is paternity an issue?
2. Was their prima facie evidence of an affirmative consent to bear children post-mortem?

The court found for the widow in that there was indisputable evidence of consent and foreknowledge of the desired outcome, as well as awards benefits and inheritance rights to the posthumously born child.
 

Case 3: Astrue, U.S. Supreme Court

Astrue [Astrue v Capato, 132S. CL, 2021 (2012)] is a Florida case of posthumously conceived twins born 18 months after the husband’s death. The widowed mother applies for Social Security dependent benefits. Like Woodward, the Social Security Administration denies her claims. The 3rd Circuit overturns the trial court. The Supreme Court unanimously overturns the 3rd Circuit finding that the Social Security Administration was within its authorized authority to apply Florida intestate law to the notion of posthumously conceived children.
 
Under Florida law, heirs not in utero prior to the death are ineligible for inheritance. Additionally, the court noted that the deceased was silent as to his intent for children to be conceived post-mortem, Accordingly, unlike Woodward above, the court could not affirmatively ascertain the decedent’s intent for the use of the parental materials. Florida statutes also terminate a marriage at the date of death and hence the conception occurred when the widow was technically unmarried.
 
Posthumously conceived children, born of the same parents, receive different treatment under the law depending upon where they were conceived and where they were born. CPAs should be aware of conflicting state laws and assist their clients in understanding their rights while documenting parental intent. Clearly, the Woodward case and its two-pronged test provide excellent guidance for couples facing reproductive issues, difficult diseases, and untimely death.
 
The courts and emerging legislative model rules clearly express that informed consent and pre-determinations, in writing, are paramount to providing familial and legal benefits for children conceived posthumously. Additionally, the timing of the births is important. California considers a child conceived within two years of death as a qualified heir, while Iowa allows for a live birth within two years. These subtle differences will need to be addressed or it is plausible that more liberal states will see a rise of such qualifying births.
 
Addressing such complicated matters with our clients is difficult at best and embarrassing at worst. Personal, professional and even religious conflicts exist at all stages of these discussions. Most importantly we, as advisers, have a duty to protect our clients from inadvertent traps and issues that could negatively impact them in the future.
 
Holding conversations early allows families to consider these issues and make preparations, Additionally, based upon the beliefs and values; choices of residency may be altered to protect the family’s wishes as to how they decide to allocate their wealth and resources for their collective futures.
 

Ultimately there are several local and state laws and regulations that will determine your outcomes. Be advised, that consulting with us beforehand is probably a good idea. We are here to help. Please Contact Us at Morris+D’Angleo to learn more.

 

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