Trust Updates Archive

Posthumous artificial insemination trusts Vernoff Gillet-Netting Ninth Circuit state law California Arizona Probate Act Family Code Regulation Regulators fiduciary Equal Protection Clause Inheritance and the Posthumously Conceived Child

(July 16, 2009--Chicago, IL) -- Reproductive technology is outpacing federal and state laws, but states are catching up.

Whether posthumously conceived children can inherit or be eligible for survivor benefits depends on state law and the decedent’s expressed intent to have children, according to the Ninth Circuit Court of Appeals. A recent ruling denied survivor rights to a child posthumously conceived in California. In 2004, the same court ruled that a child posthumously conceived in Arizona was a legal heir and entitled to Social Security survivor benefits.

While both cases involved Social Security benefits, the appeals court rulings also address inheritance.

The rulings highlight significant differences between state laws defining inheritance rights and “natural parent” status. These definitions are central to determining dependency for Social Security purposes. As for federal law, the Ninth Circuit dismissed the notion that posthumously conceived children are protected by the Equal Protection Clause of the U.S. Constitution.

For fiduciaries, this is clearly an issue that will be easier to add to the new account checklist than to ask the widow: Did your husband leave any frozen sperm, and do you intend to have more children? Where this is an issue, lack of the decedent’s consent could prove a significant hurdle.

For more on this see the current issue of Trust Regulatory News.

No statement in this issue is offered as or should be construed as legal opinion or advice or as an indicator of future performance.

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