Legally Speaking: The rights of a posthumously conceived child

Legally Speaking: The rights of a posthumously conceived child

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By Linda Toga, Esq.

Linda Toga, Esq.

THE FACTS: My brother Tom recently passed away. I am the administrator of his estate. Tom had no children and was not married at the time of his death, but he was living with Sue. They had been living together for over 10 years. 

About a month after Tom’s funeral, Sue told me that she and Tom had been seeing a fertility specialist with hopes of having a child together. Even though Tom had died, Sue still wanted to have his child and she advised me that she planned on using Tom’s frozen sperm to that end. She also claimed that the child that was born using Tom’s sperm would be entitled to a share of Tom’s estate, even though Sue and Tom were not married. 

THE QUESTION: Is Sue correct? Is a child who is conceived and born after the death of a biological parent entitled to a share of the estate of a parent he/she never knew?

THE ANSWER: Without any additional information, my answer to your questions is, “It depends.” Under the New York Estates, Powers & Trusts Law (EPTL), a child who is conceived and born after the death of its genetic parent (the person who provides the sperm or ova used to conceive the child) is, in fact, considered an heir of the deceased genetic parent provided certain steps were taken both prior to and immediately following the death of that genetic parent. 

EPTL Section 4-1.3 is quite explicit as to the requirements that must be met for a posthumously conceived child to be entitled to a share of the deceased genetic parent’s estate. Because of the complexity of the issues surrounding this situation, courts are inclined to interpret the law very strictly.

In order to be deemed the legitimate heir of the deceased genetic parent, at least seven years prior to his/her death, the deceased genetic parent must have expressly consented in writing to the use of his/her genetic material for the posthumous conception of a child. The deceased genetic parent must not only give consent for the use of his/her genetic material, but he/she must also name the person who has the authority to use the material. 

Within seven months of the issuance of letters testamentary or letters of administration, the authorized person must give written notice to the estate representative and to other beneficiaries of the estate that he/she has the authority to use the decedent’s genetic material for the purpose of conceiving a child. The timing of this notice is different if the court has not been petitioned for letters. In addition to giving the estate representative and beneficiaries notice of the authority to use the genetic material, the authorized person must also file with the surrogate’s court the written statement that was signed by the deceased genetic parent in which authority to use the genetic material was granted. 

The genetic material must be used by the authorized person and the genetic child must be in utero no later than 24 months or born no later than 33 months after the genetic parent’s death. If the initial writing of the genetic parent giving consent to the use of his/her genetic material and authorizing an agent does not meet the statutory requirements, or if the notice of requirements and deadlines set forth in the statute are not met, the court will likely deny the genetic child a share of the deceased genetic parent’s estate. 

There is clearly a lot at stake here for people who do not have children but, are hoping to have them in the future. There is also a lot at stake for the potential genetic child and for the other heirs of a deceased genetic parent’s estate. 

In the situation you described, if Tom had, in fact, signed the requisite consent and authorization and Sue meets the statutory deadlines, the child that she has using Tom’s genetic material will be the sole beneficiary of Tom’s estate. Because so much hangs in the balance for all concerned, it is critical that anyone considering the possibility of having a posthumously conceived child and anyone who is handling the estate where such a child was born to seek the advice of an estate planning attorney. 

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, real estate, small business services and litigation from her East Setauket office. Visit her website at www.lmtogalaw.com or call 631-444-5605 to schedule a free consultation.

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