Most individuals would never think to plan for an unborn child in their estate plan. However there may be circumstances where it is necessary to have a clause in your will providing for posthumously conceived children.
With modern day advances in medicine, it is possible for couples to conceive a child after death through in vitro fertilization. This was the subject of Astrue v. Capato, a recent Supreme Court case where Karen Capato conceived and gave birth to twins, eighteen months after her husband Robert’s untimely death due to cancer. When Robert was diagnosed with cancer, his doctors advised him that the chemotherapy treatments would make him sterile. Based on this information, he decided to preserve his sperm in a sperm bank.
The issue brought before the Supreme Court was whether the posthumously conceived twins were eligible for Social Security survivor’s benefits. To answer this question the Supreme Court relied on the definition of “child” under the Social Security Act.
The Supreme Court determined that the term “child” is defined by the intestacy laws of the state where the decedent lived. Florida law was applied because this is where Robert Capato lived at the time of his death. The Supreme Court ruled that the twins were unable to collect Social Security survivor’s benefits because of Florida’s intestacy laws, which state that children conceived after a parent’s death cannot inherit from the parent, unless they are referred to in the parent’s will.
Unfortunately the twins were not provided for in Robert Capato’s will. For this reason, it is advisable to review and revise your will upon any change in life circumstances, especially if you are contemplating in vitro fertilization, where conception may occur after your death.
In Massachusetts, children conceived posthumously are able to inherit and receive death benefits from their deceased parents. In 2002, the Massachusetts Supreme Judicial Court heard the case of Woodward v. Commissioner, which was identical in facts to the recent Supreme Court case. The husband became terminally ill and had his sperm preserved at a sperm bank.
After his death, his wife conceived through in vitro fertilization and twin daughters were born. The highest court in Massachusetts ruled that the twin daughters could receive benefits from the father if three criteria were established. First, the children must be the genetic descendants of the father. Second, the parent must have affirmatively consented to the posthumous conception. Lastly, the deceased parent must have consented to the support of any resulting child. Therefore, if you and your spouse, (or partner,) are contemplating in vitro fertilization, it would be beneficial to expressly consent to support posthumously conceived children in your estate plan.
Had Robert Capato provided for any posthumously conceived children in his will, his twins born after his death would have been entitled to Social Security survivor’s benefits. It is fairly simple to incorporate a provision consenting to conception of unborn children and to provide for their support. The key is to be sure you inform your estate planning attorney so that such a clause can be added.
Hyman G. Darling, Esq.
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