What Inheritance Rights Does a Child Conceived after Death Have?

Not all that long ago, an infertile couple’s only real option for becoming parents was to adopt a child. Not so today. Thanks to advances in medicine and technology, seemingly infertile couples now have a wide variety of potential pathways to parenthood. Though the link between infertility treatments and estate planning may not seem obvious at first glance, it is there. One fertility related estate planning question the law has been struggling with in recent years is “What inheritance rights does a child conceived after death have?”

Most issues related to wills, trusts, and estates are governed by state law. For example, state laws determine who will inherit through intestate succession when a decedent dies without leaving behind a valid Last Will and Testament. Although the intestate succession laws vary somewhat from one state to the next, almost all states give priority to a spouse and/or children when deciding who will inherit an intestate estate. What about a child who is born after the death of the decedent? Posthumously born children do not create a legal issue; however, posthumously conceived children do.

In the State of Missouri, Missouri Revised Statute 474.050 governs the issue of after born children, reading as follows:

“All posthumous children, or descendants, of the intestate shall inherit in like manner, as if born in the lifetime of the intestate; but no right of inheritance accrues to any person other than the children or descendants of the intestate, unless they are born and capable in law to take as heirs at the time of the intestate’s death.”The statute, however, was intended to govern situations where a child was conceived during the lifetime of the decedent yet born after death. Today, technology allows an embryo to be frozen for months, even years, before implantation and subsequent birth. Therefore, a child could be both born and conceived after death. Although Missouri is not one of them, some states have passed laws limiting the amount of time after death that a posthumously born child can inherit. In California, for instance, a posthumously conceived child does have inheritance rights but only if the child is in utero within two years after death and the decedent consented in writing to a posthumously conceived child.

A decades old case in Missouri, Vogel v. Mercantile Trust Company National Association 511 S.W.2d 784 (Mo. 1974), has heretofore been used to define posthumous children. In that case, posthumous children were defined as those “conceived during the lifetime of the testator and born thereafter.” Using that definition, posthumously conceived child would not be entitled to inherit; however, the Missouri high court has not reviewed the issue nor has legislation directly addressing the question been enacted, leaving the question without a concrete answer in the State of Missouri.

If you have additional questions or concerns about the inheritance rights of a child born and/or conceived after birth contact the experienced Missouri estate planning attorneys at Amen, Gantner & Capriano, Your Estate Matters, LLC by calling (314) 966-8077 to schedule an appointment.