Help Me Plan for My Child (Who may be conceived after my death)!

Modern reproductive options are creating interesting new wrinkles in the estate planning process.

Due to recent advances in medical science, many individuals are considering the new childbearing options created by fertility preservation.

It is well-settled law that children conceived prior to, but born after, a parent’s death are considered legal children for Social Security estate planningsurvivor benefits and inheritance purposes. These days, however, children are being conceived after death. The issue of posthumously conceived children may not be common, but it does bring new challenges to estate planning.

Reasons for fertility preservation abound: a spouse serving in the military may be at risk of losing his or her life. Or there may be concerns about future fertility, age, cancer, vaccines, or exposure to biological and chemical agents.

In her recently published book, “Motherhood Rescheduled: The New Frontier of Egg Freezing and the Women Who Tried It,” author Sarah Elizabeth Richards addresses what she calls “the most powerful gender equalizer of all”—the ability to control when women have children. She notes that one effect of egg freezing is to make women more open to using science to explore routes to create their own families (such as with using donor sperm and frozen eggs). And if using their own frozen eggs doesn’t work, women can now go online to a commercial egg bank to find an egg donor.

Professor Kristine Knapuld of Pepperdine School of Law, in a 2011 American Bar Association presentation called Born to Be Wild: Assisted Reproduction and Estate Planning, notes that with more than 500,000 embryos and countless sperm and eggs stored for future use, estate planners must consider the possibility that their Baby Boomer clients or their clients’ adult children may have a post-mortem child—a child born years or even decades after a parent’s death.

Let’s take a quick look at legal developments regarding this possibility before examining the questions it raises for planners.

In some states, a child, as defined for estate planning and inheritance purposes, includes a baby conceived from the genetic material of a person after his or her death—as long as the decedent consented in a written record to such use and to be the parent of that child. Courts in Arkansas, Arizona, California, Florida, New Hampshire, New Jersey, and New York have addressed the issue of children conceived post-mortem. Maryland also addressed the issue with a new law in 2012. That law specifies that if the decedent dies without a will, the aforementioned definition of “child” applies as long as the child is born within two years of the testator’s death.

A Supreme Court case, Astrue v. Capato, 132 S. Ct. 2012  (U.S. 2012), addressed the issue of Social Security benefits. The court determined that the Social Security Administration survivor benefit law mandates that the administration look to state law to determine if a posthumously born child is entitled to Social Security benefits. The Astrue case involved a Florida decedent, and under Florida law children cannot inherit from a parent if they were conceived after that parent’s death. Therefore, children in Florida conceived posthumously do not have the right to Social Security benefits.

In Colorado, however, a person is included in a class of persons named in estate planning documents (children, grandchildren) if they are intended to be the heirs of the person who created them.

As state laws continue to evolve, they raise sticky estate planning issues. Those issues include the following:

  1. What impact does conception after death have on when an estate can close? And when is it a certainty that all the heirs can be ascertained?
  2. What protections exist to guard against fraud?
  3. Will insurance companies, IRA, annuity, and other contract providers have to be aware of this when paying benefits?
  4. Should a discussion of the possibility of children conceived after death be addressed in routine estate planning—both for the clients sitting across from you and for subsequent generations of family members?
  5. What impact will this have on ancestral trusts? Is this an issue that should be discussed with grandparents?
  6. Should the parent, when planning his or her estate, address whether or not any cryopreserved material should be preserved, used by a spouse, by a partner, or be donated?
  7. Should estate planning include a nomination of a guardian of a not-yet-conceived child?
  8. Should estate planning documents specifically include a provision that either includes or excludes posthumously conceived children?

Right now, there appear to be more questions than answers. But as times change, so must the discussion between families and their estate planning and tax advisers.


Patricia Annino is a sought after speaker and nationally recognized authority on women and estate planning.  She educates and empowers women to value themselves and their contributions in order to ACCOMPLISH GREAT THINGS in the world – and in so doing PROTECT THEMSELVES, those they love, and the organizations they care about.  Annino recently released an updated version of her successful book, Women and Money: A Practical Guide to Estate Planning to include recent changes in the laws that govern how we protect our assets during and beyond our lifetime.  To download Annino’s FREE eBook, Estate Planning 101 visit,

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