Can Posthumous Children Be Heirs?

I’ve written a number of times about the problems presented by children conceived after the death of a man who provides sperm used to create the child.   If you go read those posts you’ll see that in general I’ve been thinking about children conceived via sperm that was frozen before a man died (or in a few cases, harvested just after his death.)   The main issue I’ve written about has been entitlement to Social Security benefits.   The Supreme Court has agreed to review one of these cases and so we’ll have an interesting opinion to digest before the end of the Court’s term.

There’s a recent article in US News & World Reports  that discusses some of these questions, but as the article makes clear, the ones involving frozen sperm are really a subset of a larger set of perplexing cases.   If you freeze sperm a child may be conceived after the death of the man who provided the sperm.   It’s also possible now to freeze eggs, so you could get the same problem there.

But we all know that there are thousands of frozen embryos around as well.  Suppose embryos are created during a person’s lifetime, but then frozen for later use.   Imagine that the person who provided the gametes then dies.   A child from those embryos is not a posthumously conceived child.   (Conception occurs when the sperm fertilizes the egg leading to the creation of an embryo.)     Nevertheless, I think cases involving embryos that were frozen at the time of the death of the person who provided the gametes are essentially the same as the frozen gamete cases.    I just don’t have a very good descriptive name for these children.

The US News article is focussed on problems of estate planning and inheritance, and these are obviously going to arise.   The thing to remember here–and what really (to my mind) can make this hard–is that eggs/sperm/embryos can be frozen for a long time.  A child could be born ten months after the death of the gamete provider or potentially ten years.   There’s a big difference here, particularly if you think of the estate problems.

Suppose a person dies and leaves their estate to be divded equally among their children.  How long do we need to wait to see how many children there are?  To say that the estate must be frozen (sorry about that) for as long as a child might potentially be created is wildly impractical.

What that article tells us is that some people have agreed on an (arbitrary) cut off point of 45 months (That’s the model probate code, which has not been widely adopted.)   I do wonder about where that span of time comes from.   Five times the normal span of a pregnancy?  (It’s hard to see why you’d use that as a metric, but what else might 45 relate to?)

And this is the problem for people who write wills–generally not the majority of the population.  For those with no wills, state intestacy statutes will control.   It’s uncertainy here that is relevant to the Social Security questions.

So all of this is just a reminder of the host of legal issues created by ART.    I’m inclined to agree that there has to be a bright line–a time after which the kids cannot count.   Figuring out where that line goes is always arbitrary, really.  But at least we could have some settled law.

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3 responses to “Can Posthumous Children Be Heirs?

  1. Social Security and other benifits of that kind are intended to help support the people who were your qualifying dependants at the time of your death, they don’t have to be your children. If your nephew was living with you and was being claimed by you, not his parents on the previous year’s tax return he would be entitled to survivor benefits. If your child were living with your brother and you paid no support then the child was not dependent upon you. My neice and nephew were not in the care of their mother when she died but my brother received money taken from her disability, she was supporting them 2ndarily they did receive SS death benefits until they were 18.

    If you are dead when your child is born they were never dependent upon you for support. No brainer – no SS death benefits for people that never relied upon you to feed them.

    Wills and the like? I have no logical path to follow to figure that out.

    • I think this whole line of cases starts with those where a child is conceived during a man’s lifetime and born after his death. (Imagine he went off and died in a war.) Those kids (I think) have always gotten benefits, event hough the point you make about them not being dependent is valid. I don’t think anyone disputes this outcome, really.

      Of course, these cases long pre-date ART. So once you start allowing benefits for posthumously born children, when do you stop? Where is the line drawn? If they are conceived a day after the man dies are they in or out? A week? A month? A year? (You get the idea.)

      You are right that social security issues are different from issues with wills/inheritance, but the answers have been (legally) related.

      I think what is going on here is that the problem is pretty new and we don’t have the lines drawn yet. We’re just getting to that part.

  2. Jennifer Lahl was nice enough to talk with me about how people go about revising laws on this subject. She told me she testified in favor of SS death benefits for posthumous children. I said that thing about the child not being dependent upon the person at the time of death she really paused and said she had not thought of it that way before. She did not say she changed her mind or her position, but she contemplated what I said anyway.

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