Estate Planning Quandary: Children Conceived After Death

Historically, states have had legal frameworks for dealing inheritance rights in the not uncommon situation where a baby is conceived during its father’s lifetime but born after his death. At common law, a baby born within 280 days after its father’s death was presumed to be the father’s child, and therefore entitled to inherit from the father’s estate. Of course, this rule was established during a time when it was only possible for conception to occur during the father’s lifetime. 

But what happens when conception occurs months or even years after the father has died? Each state has its own way of approaching this very modern issue, and the outcomes can be vastly different. 

In Florida, for example, the posthumously conceived children of parents who die intestate don’t have any inheritance rights. A child conceived after a decedent has passed away is ineligible to inherit from the decedent’s estate unless there’s a will specifically providing for that child. 

Louisiana takes a much different approach, providing that a child conceived after his or her father’s death has inheritance rights, if two conditions are met: 1) The father must give written authorization for the use of his sperm for the purpose of conceiving a child after his death, and 2) The child must be born within three years of the father’s death. 

The law often lags behind technology, and this is an area in which that gap is likely to exist for quite some time. The status of current legislation is unsettled at best, which presents an opportunity for attorneys, as counselors, to provide an invaluable service to our clients. Do you have provisions in your documents concerning posthumously-conceived children? How do you approach this issue in your practice?