State laws vary regarding posthumously conceived or pretermitted children. Many states refer to these children as after-born children or unintentionally omitted children. A pretermitted or posthumously conceived child is one that was born after a parent drafted their Will. In many states, these children receive the same inheritance rights as their siblings born after their parents drafted their Wills.
Technically speaking, a posthumously conceived child typically refers to those children conceived after the death of their parents. In most cases, these children were born from embryos frozen while their parents were alive. “Embryo cryopreservation” is the medical term for children born from frozen embryos. Currently, there is very little case or statutory law regarding the rights of posthumously conceived children. A posthumously conceived child is one in which a parent’s egg was fertilized with a parent’s sperm after one parent died. There is a difference between a posthumously conceived child and a posthumously born child. A posthumously born child is one in which parents conceived the child while they were still alive.
Many legal scholars believe that posthumously conceived children should have the same inheritance rights as posthumously born children. In a novel appellate case, the Ninth Circuit Court of Appeals considered a posthumously conceived child’s inheritance rights when the child’s father died of cancer after freezing his sperm. His wife used his sperm after his death and successfully conceived twins. The Ninth Circuit Court of Appeals held that a posthumously conceived child has the same inheritance rights as a posthumously born child.
Stephen A. Mendel, Estate Planning Attorney
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