If you work in estate planning long enough, you will eventually hear about new things that you never considered. One thing that very few people think about is the possibility of posthumous children. These are children that are born after the parent in question has passed away.
Laws dealing with posthumous children have long been on the books. It is not unusual to pass away while a woman is pregnant with his child. It is also not unusual for a woman to die in childbirth. These things have always happened and estate law recognizes that. Today, however, women and men can have posthumous children because their sperm and eggs are used after they pass away. If a couple attempted in-vitro fertilization, it’s possible that the sperm or eggs can be used after one of them passes away.
The law dealing with these children isn’t as clear. For purposes of Social Security survivor benefits, the Supreme Court recently decided that it’s up to each individual state’s law to determine whether the child will receive benefits. If you have attempted in-vitro fertilization, you probably should consider what will happen to any posthumous children your spouse might decide to have. You can include provisions in you estate plan for them.
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