Proper estate planning can address many of the legal issues created by posthumous conception. As to the rest, we can understand if the law of property succession has to put some limitations on how late the stork can get started.
When science moves too fast for the law it can create some pretty strange situations. For instance, beyond a doubt, the strangest (and most commonplace) example is posthumous birth. How can the law accommodate new fertility and tissue-preserving techniques?
Well, it’s really not all that able to, nor does it want to, and as pointed out in a recent article in Trusts & Estates.
If you’re old enough to get past the fable of the stork and his precious cargo for expectant mothers around the world, then you’re also old enough to understand much of the logic behind the laws supporting inheritance. For example, when people become parents of children, more often than not, they wish to legally pass on certain inheritances.
To a certain extent, this involves the assumption that you were there (in every sense of the word) for the act that created the child. However, modern science has given us the ability to manipulate genetic material and create human children from cryogenically preserved sperm, in vitro fertilization, and other fertility procedures. Taking it a step further, modern science has allowed for the birth of a child from the genetic material of a parent who is no longer alive.
While that may be a gift in the face of fatal disease and treatments that cause infertility, it’s also a huge burden on tax and inheritance law that can’t quite wrap itself around the concept. For example, how do you determine the standing of a child conceived and born after probate? Is that child even a “child” of the deceased?
The case of Capato v. Astrue, as discussed in the original article, represents something of a happy ending to the dilemma. In that case, the children (twins) were held to be children of the deceased, and so entitled to his social security surviving child benefits. Nevertheless, the case hinged on that very distinction between genetic offspring and “child.”
The distinction, in most cases, is decided by the Uniform Parentage Act (UPA) Section 707. As summarized in the Trusts & Estate article, that section provides that if a person dies before his genetic material is used in conception, the decedent isn’t a “parent” of the resulting child unless the decedent expressly consented to be a parent of such a child.
What does that mean? It means you need to plan for children that you and your spouse, in a certain sense, won’t have together. It also means that if you’ve planned enough to preserve your reproductive tissues and abilities, then it is necessary to plan for those possible children, and explicitly so.
Reference: Trusts & Estates (February 29, 2012) “Posthumous Conception”