Several states refer to children who are born or adopted after the execution of a parent’s will and omitted from the provisions of the testamentary instrument as “omitted” or “pretermitted” children. In the interest of fairness, states that recognize the inheritance rights of posthumously born or adopted children have traditionally allowed “omitted” children to inherit under intestate succession (i.e., taking a share equal in value to what the child would have received if the testator had died without a will).

However, the law on the inheritance rights of posthumously conceived children (children conceived after the death of a parent) is less developed. This lack of any firmly established legal precedent for determining the inheritance rights of posthumously conceived children may be attributed to significant and ongoing advances in reproductive technology, which have made it possible for children to be conceived subsequent to the death of a parent.

Embryo Cryopreservation and Other Reproductive Technology

Advances in “embryo cryopreservation” and other reproductive technology (including the storage of frozen sperm for future use) have aroused new legal issues related to the inheritance rights of children conceived after the death of a parent. In general terms, “embryo cryopreservation” is the process of freezing, storing and thawing embryos not replaced in a fresh embryo transfer to increase pregnancy rates. Similarly, sperm can be frozen and stored for future in vitro fertilization, lasting up to ten years.

Proving Status as “Child” and “Dependent” for Social Security Benefits

Potentially setting a trend in the direction the law might be headed, the U.S. Court of Appeals for the Ninth Circuit held in 2004 that posthumously conceived children should receive the same inheritance benefits as posthumously born children, under certain circumstances. In Gillett-Netting v. Barnhart, the U.S. Court of Appeals for the Ninth Circuit applied a two part analysis to determine the eligibility of posthumously conceived twins for their deceased father’s Social Security benefits. In that case, the decedent deposited his sperm to be frozen for future in vitro fertilization after having been diagnosed with cancer (in case chemotherapy rendered him sterile). Before he died, the decedent expressed his intention that his wife could use his sperm to conceive. Ten months after his death, his wife conceived twins.

First, the court set out to determine whether the posthumously conceived twins could prove the “child” status required by the Social Security Act (SSA). The SSA definition of “child” generally includes a “child or leally adopted child,” which has been interpreted by the courts to include the natural or biological children of the insured. Extending the general definition of “child” to include the biological children of married parents no matter when conceived, the Ninth Circuit ruled that the twins proved “child” status.

Second, the court considered whether the twins could prove that they were “dependents” of their deceased father, even though the twins never relied on their deceased father’s earnings for support (because they were not yet in existence). Under the SSA, “legitimate” children are automatically considered “dependent” for purposes of inheritance. Since the decedent was the “natural” father of the twins and was married to the twins’ mother, the court concluded that the twins were “legitimate” under the law of the state in which they resided. Therefore, the twins could be deemed “dependent” under the SSA. Because the twins successfully proved their status as “children” and “dependents,” the court ruled that they should be entitled to Social Security benefits based on their deceased father’s earnings.

Disparate Rulings in the Ninth Circuit

However, the Ninth Circuit took an entirely different stance in 2009 in Vernoff v. Astrue, denying Social Security survivor benefits to a posthumously conceived child in California. The district court in Vernoff held that there was no showing that the child was dependent upon the deceased, due to the child’s posthumous conception. The Ninth Circuit affirmed.

How can the same court, the Ninth Circuit, issue two very disparate rulings on the same issue? The answer is the Ninth Circuit is applying the law of two different states (California law in Vernoff, and Arizona law in Gillett-Netting). Substantial differences in the two state laws resulted in vastly different holdings by the Ninth Circuit.

Rule for Determining Inheritance Rights of Posthumously Conceived Children

In addition to the Ninth Circuit holding, a few states have enacted statutes allowing posthumously conceived children to inherit from a deceased parent if the parent left written consent to that effect (subject to a time limit in some cases). In 2002, the Supreme Judicial Court of Massachusetts established a special rule for when a posthumously conceived child should be able to inherit from a deceased parent under the state’s intestacy statute, requiring the child or the child’s representative to establish the following:

  • Proof of a genetic tie
  • Proof of the now-deceased parent’s affirmative consent to posthumous conception and to the support of the resulting child

Despite the aforementioned court decisions and statutes on the question of the inheritance rights of posthumously conceived children, the ongoing advances in reproductive technology and the lack of a definitive legal rule on the subject leave the inheritance status of posthumously conceived children subject to uncertainty.