February 2008 Archives

February 21, 2008

Can Children Born After a Parent's Death Inherit? Depends on Where They're Born


istock_000002478491xsmall.jpg

It's always been possible for a baby to be born months after its father's death. (The father of former President Bill Clinton was killed in a car accident before his son was born, for example.) The law can handle that situation: the child is treated just like any other child for purposes of inheritance.

But new reproductive technologies make it possible for a child to be born years after its father's death. Frozen sperm can be used for insemination; a frozen embryo can be implanted and develop into a baby.

The law is hopelessly behind on these issues. When a child is born long after the biological father had died, does the child inherit from the father? Or qualify for Social Security benefits based on the father's record? Some courts say yes, others say no.

The Arkansas Supreme Court has just weighed in, in the case of a woman who used an embryo, created while her husband was alive, to become pregnant a year after his death. The court ruled that under state law, the child could not inherit from the biological father, who had died without a will. The legislature, the court said, could not possibly have intended such a result, because it last revised the law in 1969, years before in vitro fertilization was possible. (Finley v. Commissioner, January 10, 2008.)

Florida and New Hampshire courts have come to the same conclusion. But Massachusetts and federal courts have gone the other way, ruling that babies born into similar circumstances did qualify for inheritance from their deceased fathers.

There's a simple solution: The state legislatures need to get busy and settle these issues, so families don't have to battle their way through the courts to get answers. Some states have already acted. As for the others--hey, the first in vitro birth was in 1978. They're only 30 years behind.