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Estate and Elder Law

Jennifer F. Hillman: Inheritance Rights of Posthumously Conceived Children in New York State


By:  Jennifer F. Hillman, Esq. 

Medical technology continues to advance at a rapid pace.  Since the first “test tube” baby was born on July 25, 1978, the field of artificial reproduction has blossomed.  According to the United Stated Department of Health and Human Services Office of Population Affairs, the latest data suggests that there are more than 600,000 cryo-preserved embryos in the United States.[1]  While it is unlikely that more than a fraction of these embryos will be implanted, the inheritance rights of these children is unclear, particularly when the embryos are implanted after one of the genetic parents has died. 

The landmark Supreme Court case Astrue v. Capato, 132 S.Ct. 2021 (2012) [enhanced opinion available to subscribers] reviewed denial of Social Security benefits for decedent’s surviving children where the children were conceived after their genetic father’s death.  Upon review, the Supreme Court determined that state law governs whether the posthumously conceived children could receive surviving child’s insurance benefits under the Social Security Act.  Because posthumously conceived children could not inherit under Florida’s intestacy law, the Capato children could not receive social security benefits.

 Translating the Supreme Court’s decision to New York has been difficult because the Estate Powers and Trust Law does not clearly state whether posthumously conceived children can inherit under intestacy law. 

Recent proposed legislation attempts to clarify this issue.  Bill No. A 7461 would consider these children distributees of their genetic parents, provided they can meet certain criteria.  These requirements include: 

(i)                  The prior execution of a written document by the genetic parents expressly consenting to the use of any genetic material (sperm, egg or embryo) for posthumous reproduction and authorizing a named individual to make decisions about the use of the genetic material after the genetic parent’s death;[2] 

(ii)                The authorized individual must provide written notice of the existence of the genetic material to the personal representative of the genetic parent’s estate within 7 months of the genetic parent’s death;[3] 

(iii)               the authorized individual must record or file the written notice with the Surrogate’s Court that granted letters in the genetic parent’s estate, or the court having jurisdiction to do so;[4]

(iv)              the genetic child must be either in utero within twenty-four months of the genetic parent’s death, or must be born within thirty-three months of the genetic parent’s death.[5] 

If the above requirements are met, the genetic child is a child of the genetic parent, a distributee of the genetic parent and is included in any disposition to a class in an instrument created by the genetic parent.  The genetic child will be entitled to social security survivor benefits based upon the genetic parent’s earnings.  The genetic child would also be an intestate distributee of the genetic parent – meaning they could inherit through intestacy through their genetic parents, or by an instrument leaving a bequest to any class that they belong to.  For example, a posthumously conceived child (who meets the above requirements) would inherit through intestacy from their genetic parent’s parents (their genetic grandparents) or in any instrument which leaves a bequest to a class that they belong to.  

There are some other interesting aspects of the proposed legislation.  First, the written authorization to utilize genetic material after death is revoked should a marriage end in divorce, annulment, or a judgment or order of legal separation is entered against the spouse.  

In addition, genetic material cannot be the subject of a disposition in any instrument.  The contract between the fertility clinic or and the couple governs what is to become of the genetic material.  See, e.g., Kass v. Kass, 91 NY2d 554 (1998) [enhanced opinion]. 

The proposed legislation has passed both the New York State Senate and Assembly, and will be delivered to the governor sometime over the summer. 

Frozen sperm, eggs and embryos are becoming more common and should be addressed by estate practitioners when meeting with new clients.  While the genetic material itself cannot be bequeathed by will, estate practitioners should advise clients concerning inheritance right of posthumously conceived children, whether it is their own genetic material or that of a relative.  Grandparents, aunts, uncles, etc. should all understand who may be part of a class of issue or distributees.

Jennifer F. Hillman is an attorney at Ruskin, Moscou Faltischek, P.C., Uniondale, New York where her practice focuses in the area of trust and estate litigation.

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[2] proposed EPTL 4-1.3(b)(1)

[3] proposed EPTL 4-1.3(b)(2)

[4] proposed EPTL 4-1.3(b)(3)

[5] proposed EPTL 4-1.3(b)(4)