Eugene E. Peckham on Inheritance Rights of Posthumously Conceived Children

Eugene E. Peckham on Inheritance Rights of Posthumously Conceived Children


The time is ripe for the New York Legislature to consider the inheritance and other rights of posthumous children in light of modern reproductive technology and DNA testing. In this Commentary, Eugene E. Peckham examines the issues of: (1) genetic relationship; (2) consent; and (3) time limit associated with the inheritance rights of posthumously conceived children. He writes:
 
     The Woodward (Woodward v. Commr of Social Security, 435 Mass. 536, 537-538, 760 N.E.2d 257, 259 (2002)) court set forth a three-part test to determine whether a posthumous child can inherit from the deceased parent. The three requirements are:
 
1. A genetic relationship between the child and the decedent,
 
2. Consent of the decedent and
 
3. A time limit on the claim.
 
(See also Gary, Posthumously Conceived Heirs, 19 PROB. & PROP. 32 (Mar./Apr. 2005)).
 
     Such a test would be applicable where the decedent died intestate, or without making provision for a posthumous child in a will. A person who contemplates the possibility of posthumous children can always make provisions for such a child in a will.
 
     With the availability of DNA testing it would seem that proof of genetic relationship between the mother or father and the posthumous child should be easy. DNA testing is 99-100% certain, which undoubtedly meets a clear and convincing standard of proof (In re Santos, 196 Misc. 2d 972, 768 N.Y.S.2d 272 (Sur. Ct. Kings County 2003)). The only concerns are that the blood must be drawn under strictly controlled laboratory conditions and the chain of custody meticulously documented (In re Santos, 196 Misc. 2d 972, 975, 768 N.Y.S.2d 272, 275 (Sur. Ct. Kings County 2003)).
 
     However, under existing New York law there is a problem which turns upon whether the child is considered a marital or non-marital child. If the posthumous child is considered a marital child because the parents were married when one of them died, and the surviving spouse has not yet remarried, Domestic Relations Law Section 241 (NY CLS Dom Rel § 24) would govern and the child would seem to be the legitimate heir of the decedent. Domestic Relations Law Section 24 (NY CLS Dom Rel § 24) provides, in part:
 
1. A child heretofore or hereafter born of parents who prior or subsequent to the birth of such child have entered into a civil or religious marriage is the legitimate child of both natural parents notwithstanding that such marriage is void or voidable or has been or shall hereafter be annulled or judicially declared void.