Tuesday, September 6, 2011

On August 29, 2011, the 8th U.S. Circuit Court of Appeals in St. Louis held that an eight-year-old Iowa girl born two years after her father died is not eligible to receive his Social Security benefits.   If your grandmother, like mine, would have thought it was fishy that a child was born less than nine months after a wedding, imagine her reaction to learning that a child was born two years after the father’s death!

But with the use of assisted reproductive technology, like in vitro fertilization and artificial insemination, it IS now possible for a baby to be born more than 9 months after a parent dies. The use of assisted reproductive technology means that, if a parent preserves his or her genetic material (his sperm, her eggs, or their embryo), a mother, or a surrogate mother, could become pregnant with a deceased parent’s child days, months, or even years after a parent’s death. These children are considered “posthumously conceived”.

In the Iowa case, the child’s father died of leukemia in 2001.   He had preserved some of his sperm before he died, and his wife was artificially inseminated after he died.   The father had bequeathed the sperm to his wife so that she could conceive his child after his death.   He even signed paperwork acknowledging his paternity and agreeing to support any child resulting from his preserved genetic material.   At the time, however, Iowa law limited inheritance rights in such a way that this child could not, legally, be considered her father’s child. The Court of Appeals, therefore, held that she was not entitled to receive his Social Security benefits.  Iowa has since changed its law, granting inheritance rights to certain posthumously conceived children born within two years of the parent’s death.  But unfortunately for the child in this case, the new law does not apply retroactively.

As technology advances, and the use of assisted reproductive technology grows, situations like this will become more common.  If you are concerned that this could arise in your family, and you have strong feelings about whether a posthumously conceived child should or should not be considered your descendant for inheritance purposes, you should check with your lawyer to see what your state’s law says on the subject.  Once you know what law would govern, you should consider whether your wishes will be adequately met under state law, or whether you would prefer a different outcome.  If you would prefer an outcome different than state law would provide (or if you want to be sure of the result in case your state law changes, like in the Iowa case), you should work with your attorney to be sure that your documents correctly set forth your wishes with respect to a child, grandchild, or more remote descendant who is posthumously conceived.  State and federal law will always govern who is entitled to Social Security, but you can take charge of who inherits your estate after your death.

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