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Question:

This question is about an issue that’s rarely discussed: inheritance rights of posthumously conceived children. In my will, my definition of descendants who are eligible for inheritance will include posthumously born persons, persons born out of wedlock, and persons adopted before age 18. I’m wondering if and how I should include posthumously conceived children in the definition. As described in this article, The Issue with Issue: Rights of Posthumously Conceived Children, some states give inheritance rights to children conceived after a parent’s death (unless the will or trust says otherwise). Other states have a two- or three-year time limit on inheritance rights, but some states have no time limit. My state currently has no statute about posthumously conceived children, but is considering a statute that will have a 45-month time limit on inheritance rights.

My question is how this works if a child is born two or three years after a parent’s death and after my death, by which time all my estate assets will have been distributed to others. How would the child’s inheritance rights be enforced after the estate is closed? Is there a standard, recommended way for a will to address the issue of posthumously conceived children? To help avoid serious problems and delays with estate administration, should a will specify a time limit on inheritance rights?

Response:

This is an interesting question created by modern reproductive technology. Of course, it’s irrelevant for most people since they haven’t stored their sperm or eggs. But for those who have, it’s definitely an issue.A key question is whether you want to include or exclude posthumously-conceived issue. It’s certainly easier to exclude them. You can do so by adding words such as “if they are alive at my death” or “who survive me” to any group of beneficiaries. We often include such terms when we get relatively far down the list of potential beneficiaries. If you’re making a gift to a bunch of nieces and nephews, you may not want to include the children of any who predecease you, if for not other reason to make it easier for your personal representative or trustee so they won’t have to search out and deal with multiple beneficiaries.

To some extent, the issue you raise is akin to survivorship rights. Wills and trusts often include language saying that an heir or beneficiary must survive the individual by a certain amount of time, often 30 days, to inherit their share of the estate or trust. The reason for this is twofold. First, it simplifies estate administration. If the assets will ultimately pass to others, there’s no need to have it go through the estate of the deceased heir first. Second, it allows the individual to control who ultimately receives the funds. If you’re leaving your estate to your son and he dies soon after you, you may prefer that it go to your grandchildren than to his spouse, who may be the beneficiary of his will.

On the other hand, if you want to include posthumously conceived children, things get a bit more complicated. First, of course, you’ll have to look at what, if any, law your state has enacted to cover this issue. As you suggest, any lengthy period during which such potential heirs may be born will delay the distribution of your estate. Further, it may be difficult for your personal representative or trustee to be aware of such children, especially if we’re talking about children of heirs rather than your own children. If you were to set a time limit longer than a few months, I’d recommend using a trust so that the funds can be used for the beneficiaries during the interim. For instance, the trust could say that the trustee will make distributions on behalf of your children and grandchildren for two or three years following your death, and then distribute to those living at that time.

You don’t say whether you have frozen eggs or sperm that may be used in the future or whether you know that any of your heirs have taken this step. Certainly, if you know that posthumously-conceived children are possible, then it makes sense to plan for them. If not, I’d think you don’t need to concern yourself with this issue.

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