Since the first test tube baby was born in 1978, tremendous advances have been made in the science of assisted reproduction. Thousands of infants are born each year as a result of assisted reproductive technology (ART)1 and the more traditional artificial insemination (AI).2 But even though the Pandora's box has been open for almost 30 years and ART is rapidly becoming commonplace, state legislatures have only recently begun to answer some of the thorny legal issues regarding children who are posthumously conceived.3 And most states haven't taken any action at all.

But whether a state has acted or not, estate planners must. Ascertaining whether clients have stored genetic material and, if they have, getting written instructions on whether they want any children conceived from this material (during or after their lifetimes) to inherit from their estates should now be routine practice.

In 2003 — the last year for which statistics are available — 48,756 infants conceived using ART were born in the United States.4 This is more than double the 1996 number.5 An estimated 60,000 infants conceived through AI are born every year in the United States.6 Approximately 400,000 cryogenically frozen embryos are stored in the United States7 — and these figures can only be expected to grow.

Sperm and embryos are routinely frozen cryogenically and stored for extended periods of time, making it possible for both men and women to have genetic offspring conceived after their death. Advances in technology may soon make egg freezing just as routine.8 The science is evolving. But what about the law? Key legal questions must be answered. For example: what, if any, inheritance rights do posthumously conceived children have in the estates of deceased parents? Are they included in a class gift to children? How long must an estate be kept open to accommodate potential, posthumously conceived children? Because so many states don't have laws on the books, courts have been left to find answers on a case-by-case basis, resulting in great uncertainty.

CURRENT LAW

Courts in Arizona, Florida, Massachusetts, and New Jersey have considered whether their state intestacy statutes include posthumously conceived children.9 But as of March 3, only 11 states10 had enacted legislation specifically addressing the inheritance rights of posthumously conceived children. A majority of these 11 have adopted the Uniform Parentage Act (UPA).11 Under UPA Section 707, “if an individual who consented in a record to be a parent by assisted reproduction dies before placement of eggs, sperm, or embryos, the deceased individual is not a parent of the resulting child unless the deceased spouse consented in a record that if assisted reproduction were to occur after death, the deceased individual would be a parent of the child.”12

Thus, in the seven UPA states — Colorado, Delaware, North Dakota, Texas, Utah, Washington and Wyoming — a posthumously conceived child may inherit from his deceased parent only if this was the decedent's clear intent and that consent is on record. In addition to these seven states, three — Illinois, Maine and Oklahoma — are currently considering adopting UPA Section 707.

In other words, the trend is toward enabling posthumously conceived children to inherit from a deceased parent if that was the decedent's intent.

But the UPA's stance on posthumous inheritances is a sharp departure. In 2000, that law superseded and incorporated the Uniform Status of Children of Assisted Conception Act (USCACA). Adopted in 1988, the USCACA was the National Conference of Commissioners on Uniform State Law's first attempt to address posthumous conception.13 Section 4(b) of the USCACA provided in absolute terms that an individual who died before the conception of a child using his genetic material, would not be treated as a parent, and that the child could not inherit from this deceased parent under intestacy.

Both USCACA Section 4(b) and UPA Section 707 were designed to avoid problems that might arise in intestate succession because of posthumous conception. Under both uniform laws you could of course, provide for posthumously conceived children in your will.14 However, under the USCACA, if you didn't, the kids couldn't inherit or be deemed your children.

Estate planners in states that have enacted the UPA or other legislation dealing with posthumously conceived children, and in states that have not acted at all on this issue, must be prepared to tackle the issue of posthumous conception. Specifically providing for (or excluding) posthumously conceived children by will or testamentary substitute is the best way of ensuring that an individual's wishes will be carried out.

Nowhere is this more essential than in Florida, where state law expressly provides that a posthumously conceived child is not eligible to inherit from his deceased parent's estate unless the child has been provided for by the decedent's will.15 Thus, an insured's posthumously conceived son was denied social security survivor benefits in Stephen v. Commissioner of Social Security16 because the child was not provided for by the insured's will and, therefore, did not qualify as the insured's child under Florida intestacy law. The court distinguished Stephen from the Arizona case of Gillett-Netting v. Barnhart,17 in which the U.S. Court of Appeals for the Ninth Circuit held that posthumously conceived twins were entitled to survivor benefits under Arizona law, as legitimate children of the deceased insured. Although the Ninth Circuit did not comment on the issue of whether the twins could inherit under Arizona intestacy law, the Stephen court distinguished the cases because of the fact that Florida law deals expressly with posthumously conceived children while Arizona law does not.

CHALLENGES

With little legislative guidance, ascertaining the status of posthumously conceived children under state intestacy law is no easy task for both estate planners and those who are contemplating conception after the death of a spouse or partner. Courts in New Jersey and Massachusetts — which like Arizona do not have express statutory provisions dealing with posthumous conception — have considered the question of whether these children are included under their respective state intestacy laws.

In the New Jersey case of In re Estate of Kolacy18 and the Massachusetts case of Woodward v. Comm'r of Social Security,19 the courts found posthumously conceived children entitled to inherit under applicable state intestacy law. However, neither case came before the court in the context of an estate administration proceeding. Rather, both involved Social Security survivor benefits.

Furthermore, in both Kolacy and Woodward the husbands had preserved sperm before undergoing chemotherapy treatment for cancer, which ultimately killed them. Neither case required balancing the rights of other beneficiaries nor did they involve the complications that might arise in a blended family, in which an intestate share of a posthumous child born to a second spouse would reduce the shares of the children from a prior marriage. Advance planning is particularly important in such circumstances — especially in states without express statutory provisions.

An individual who has stored gametes for future use can provide in his will or in a trust agreement for shares to be set aside for any posthumously conceived children, and if no such children are born within a fixed term of years, for such shares to be distributed to his other children or other beneficiaries. In such case, it is also crucial for the will or trust agreement to define children, issue and similar terms to include or exclude posthumously conceived children. Otherwise, under most state laws, a class gift to children would not include a posthumously conceived child.20

The majority of states follow the common law approach that fixes the identity of people who will take property from a decedent at his date of death (or at a subsequent death in the case of future interests) with an exception for children conceived before or in gestation at the applicable date. But as science continues to advance, the law may need to take a different approach, such as that expressed by Section 14.8 of Tentative Draft No. 4 of the Restatement (Third) of Property, which provides that a child of assisted reproduction is treated for class gifts as the child of an individual who consented to function as a parent of such child, but who was prevented from doing so by death.21

UNIQUE APPROACHES

Unlike other states, Virginia took a unique approach to posthumously conceived children. It went one step further by expressly distinguishing between different methods of posthumous conception. A child resulting from artificial insemination of a wife with her husband's sperm with his consent is considered the child of both parents if either dies within 10 months immediately before the child's birth.22 This fallback to the traditional approach permitting a child en ventre sa mere (in the womb) at the decedent's death to inherit seemingly precludes inheritance by a child conceived in this manner after the husband's death. Yet, a subsequent paragraph of the same section in the Virginia statute provides that if a person dies before implantation of an embryo produced from his or her gametes (regardless of whether the second donor was his or her spouse) such person is not the parent of any resulting child, unless implantation occurs before the treating physician can reasonably be advised of such person's death or if the person consented in writing before the implantation to be a parent of any resulting child.23

Louisiana was the first to impose a time restriction for inheritance purposes on the use of stored gametes after the donor's death. A posthumously conceived child in Louisiana may inherit from his deceased parent if that parent authorized his surviving spouse in writing to use his gametes for conception, and if the surviving spouse does in fact do so. But the child must be born within three years of the decedent's death.24

LEADING THE WAY

California has perhaps the most comprehensive legislation on posthumous conception. Enacted in 2004, Section 249.5 of the California Probate Code (CPC) provides that, for inheritance purposes, a posthumously conceived child will be deemed to have been born during the decedent's life (and after the execution of the decedent's testamentary instruments) if:

  1. the deceased parent provided, in a signed and written form (revocable or amendable by a subsequent signed writing), that his genetic material be used for posthumous conception and designated an individual who would control the use of the genetic material;

  2. the designated agent gives written notice by certified mail (return receipt requested), to a person who has the power to control the distribution either of the decedent's property or the death benefits payable by reason of the decedent's death, that the decedent's genetic material is available for the purpose of posthumous conception. This notice must be given within four months of the first to occur of the issuance of a death certificate or the entry of a judgment determining the decedent's death; and

  3. the child is conceived within two years of the first to occur of the issuance of a death certificate or the entry of a judgment determining the decedent's death.

The CPC addresses all of the concerns with inheritance by posthumously conceived children discussed in applicable case law; namely, consent by the deceased parent, notice and timeliness. A similar law has been proposed in New York.25 The proposed New York legislation provides that a child posthumously conceived within two years of a decedent's death would be considered a child of the decedent for purposes of intestate succession if the decedent indicated and signed a written document stating his intent to parent such child and to provide support for that child, and if the genetic relationship between the child and the deceased parent is established by clear and convincing evidence.26 In considering what constitutes clear and convincing evidence of paternity under Section 4-1.2 of New York's Estates, Powers and Trusts Law, which governs the means for establishing paternity of a non-marital child, courts have relied on DNA evidence, including posthumously gathered DNA evidence,27 in addition to other factors.28 A companion bill would require any facility storing sperm or ovum to provide a disclosure statement to clients, before engaging in a contractual agreement, that notifies the clients of the provisions of any existing state or federal laws, including any statutes of limitations relating to inheritance rights of a child posthumously conceived from the utilization of stored sperm or ovum.29 Neither the proposed New York law nor the California statute distinguishes between stored sperm and eggs and stored embryos. Virginia appears to be the only state to have expressly drawn this distinction.

While posthumously conceived children are being embraced on the coasts, at least one state in the heartland has not warmed up to these children. Idaho recently amended its statutes to expressly exclude as intestate heirs children born from stored embryos implanted posthumously. Before this amendment was adopted in March 2005, Section 15-2-108 of the Idaho statutes provided that relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent.30 Concerned about the uncertainty that might arise in light of new scientific advances, the statute was amended to provide that relatives of the decedent conceived by natural or artificial means before his death but born within ten months after the decedent's date of death shall inherit as if they had been born in the lifetime of the decedent.31 The purpose of the change was to preclude an argument that stored fertilized embryos were conceived before death and, thus, under the old law could inherit regardless of when implantation and birth occurred.

GESTATION

Children conceived before death but born after still will fare well in Idaho and in most, if not all other states. (See “Posthumously Born,” p. 25) Most state laws permitting inheritance by posthumous children are expressly limited to children conceived or in gestation at the decedent's death, and don't take into account children conceived after death.32 (See “Posthumously Conceived,” p. 23.)

In the 15 states that have adopted the pre-1990 version of Section 2-108 of the Uniform Probate Code (UPC) or a near-identical provision,33 the applicable statute may be construed to include frozen embryos that are implanted after one parent dies. The pre-1990 version of the UPC provided that relatives of the decedent conceived before his death but born thereafter inherit as if they had been born in the lifetime of the decedent. But the UPC was amended in 1990, and now provides that an individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth. Twelve states have adopted this provision.34

The change from conception to gestation is an intentional response to evolving reproductive technology. Webster's II New Riverside Dictionary defines conception as the formation of a zygote capable of developing into a new organism, while gestation is defined as the carrying of developing offspring in the uterus: pregnancy.35 The change precludes an argument that stored fertilized embryos were conceived during the decedent's life and that any child or children resulting from implantation of such embryos would inherit from the decedent under the pre-1990 UPC. Thirteen UPC states have moved from a conception-based framework to a gestation-based one, while 12 states have retained conception as the measuring point.36 Idaho has taken a distinct approach by referring to conception by natural or artificial means.

While the current version of the UPC does not expressly provide for posthumously conceived children, revisions to the UPC are being considered, including a revision of Section 2-108 to address these children's legal standing. As more than half of the states have either adopted the UPC or similar provisions, the significance of this proposed revision can't be underestimated. The 2003 working draft retains the current Section 2-108, which provides that “[a]n individual in gestation at a particular time is treated as living at that time if the individual lives 120 hours or more after birth,” as paragraph (a) and adds paragraphs (b) through (d). The new paragraph (b) would provide as follows:

(b) An individual not in gestation at the death of a putative parent is the child of that parent for purposes of intestate succession if:

  1. the individual lives 120 hours or more after birth; and

  2. the putative parent donated the gametic material that resulted in the individual's birth and that parent's rights and/or obligations have not been terminated according to applicable state law; and

  3. the putative parent gave consent in a record to posthumous conception that would include the individual; and

  4. a complaint for determination of that individual's status as a posthumously conceived child for intestacy purposes is filed in the appropriate court before final distribution of the putative parent's estate and within three years of the putative parent's death. Such a complaint may be filed even if the individual is only in gestation at the time filed, but final determination by the court of the individual's status as a posthumously conceived child shall, in that case, be subject to later fulfillment of the conditions stated in subsections (b)(1) and (b)(2); and

  5. determination by the court of an individual's status as a posthumously conceived child shall be made within 30 days after such individual has satisfied all relevant criteria in subsection (b).37

The proposed paragraph (b) incorporates the elements of the California legislation (written consent, notice and time restriction) but goes further. Proposed paragraph (c) gives the beneficiary of the preserved gametic material standing to intervene in the administration proceeding with respect to the putative parent's estate either to bring a complaint for determination of status as a posthumously conceived child for intestacy purposes, or to give notice to the court before final distribution of the putative parent's estate of an ongoing attempt to create a posthumously conceived child. The court then would be required to direct the personal representative to set aside an amount equal to 50 percent of whatever the descendants of the putative parent would have been entitled to under intestacy for the balance of the applicable three-year-period following the putative parent's death.

PLANNING

It is essential that an individual who has stored his genetic material for possible use in assisted reproduction or who's contemplating doing so consider whether he or she38 wishes to permit posthumous use of this material for conception and whether he wishes to support any resulting children. If desired, he should provide for such potential posthumous children in his will or by trust agreement. Estate planners should learn to routinely ask whether any genetic material has been stored and, if there is anything on ice, discuss the difficult choices clients have to make. Advisors also must keep up with the evolving state law.

Endnotes

  1. ART includes all fertility treatments in which both eggs and sperm are handled. Thus, ART generally refers to the surgical removal of eggs from a woman's ovaries, combining them with sperm in a laboratory and returning them to the woman's body or to a gestational surrogate. This definition encompasses in vitro fertilization (IVF), gamete intrafallopian transfer (GIFT), and zygote intrafallopian transfer (ZIT). U.S. Department of Health and Human Services, Centers for Disease Control and Prevention, 2003 Assisted Reproductive Technology Success Rates: National Summary and Fertility Clinic Report (CDC Report).
  2. In this article, ART and AI are referred to collectively as assisted reproduction.
  3. In this article, except when expressly otherwise stated, children born from the posthumous use of frozen sperm or frozen eggs (via a gestational surrogate) and those born from posthumous implantation of a frozen embryo are referred to, collectively, as posthumously conceived children, without distinction.
  4. CDC Report, p. 55.
  5. Ibid.
  6. Ann Patton Nelson, “A New Era of Dead-Beat Dads: Determining Social Security Survivor Benefits For Children Who Are Posthumously Conceived,” 56 Mercer Law Review 759 (Winter 2005), citing Ralph C. Brashier, Inheritance Law and the Evolving Family (Temple University Press 2004).
  7. Sharona Hoffman, “Protect Intent of Donor in Posthumous Conception,” New Jersey Law Journal (Sept. 13, 2004).
  8. Egg freezing is a relatively recent scientific breakthrough and is still considered experimental. It's estimated that between 100 to 200 babies have been born from frozen eggs, but as science advances, the number of clinics offering egg banking and the number of women opting for this procedure are expected to grow. See Shari Roan, “Banking Against the Biological Clock,” Los Angeles Times (Aug. 23, 2005); “Fertility Organizations Report Encouraging New Egg-Freezing Results,” Biotech Week (Dec. 14, 2005).
  9. Woodward v. Commissioner of Social Security, 760 N.E.2d 257 (Mass. 2002), holding that a posthumously conceived child could inherit under Massachusetts intestacy law if a genetic relationship is proven and if it is established that decedent affirmatively consented to posthumous conception and to support of resulting child; In re Estate of Kolacy, 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000), holding that posthumously conceived twins were heirs of decedent under New Jersey intestacy law; Gillett-Netting v. Barnhart, 231 F. Supp.2d 961 (D. Ariz. 2002), rev'd, 371 F.3d 593 (9th Cir. 2004), holding that posthumously conceived twins were entitled to social security survivor benefits as legitimate children of decedent under Arizona law, without reaching issue of Arizona intestacy law; Stephen v. Comm'r of Soc. Sec., 386 F. Supp.2d 1257 (M.D. Florida 2005), holding that a posthumously conceived child was not a child of the decedent for Florida intestacy law, which requires that a posthumously conceived child be provided for by will in order to inherit.
  10. California, Colorado, Delaware, Florida, Louisiana, North Dakota, Texas, Utah, Virginia, Washington and Wyoming.
  11. Uniform Parentage Act (of 2000 last amended or revised in 2002), 9B U.L.A. 303 (UPA).
  12. Ibid.
  13. Uniform Status of Children of Assisted Conception Act (2001), 9C U.L.A. 363 (USCACA).
  14. USCACA, Comment to Section 4(b).
  15. Fla. Stat. Ann. Section742.17(4) provides that a “child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryo to a woman's body shall not be eligible for a claim against the decedent's estate unless the child has been provided for by the decedent's will.”
  16. 386 F. Supp.2d 1257 (M.D. Fla. 2005).
  17. 231 F. Supp.2d 961 (D. Ariz. 2002), rev'd, 371 F.3d 593 (9th Cir. 2004).
  18. 753 A.2d 1257 (N.J. Super. Ct. Ch. Div. 2000)
  19. 760 N.E.2d 257 (Mass. 2002).
  20. The issue of whether a posthumously conceived child could inherit as a pretermitted child is beyond the scope of this article.
  21. Restatement (Third) of Property (Wills & Don. Trans.) Section 14.8 (T.D. No. 4-2004).
  22. Va. Code Ann. Section 20-164.
  23. Ibid.
  24. La. Rev. Stat. Ann. Section 9:391.1.A. As originally enacted in 2001, the statute imposed a two-year limitation. However, that was extended in 2003 to three years.
  25. 2005 A.B. 4085
  26. Ibid.
  27. Courts have consistently permitted posthumously gathered DNA to be used as clear and convincing evidence of paternity and to disprove paternity. See Matter of Michael R., 7 Misc.3d 250, 793 N.Y.S.2d 710 (Surrogate's Court, Rockland County 2004), In re Santos, 196 Misc.2d 972 (Surrogate's Court, Kings County 2003).
  28. Most of these other factors are inapplicable to posthumously conceived children, such as testimony by the mother as to exclusive sexual relations with the father at the time of conception, the child's relationship with the father and the father's acknowledgement of the child as his own.
  29. 2005 A.B. 8502.
  30. Idaho Code Section15-2-108 (amended 2005).
  31. Idaho Code Section 15-2-108 (2005) (effective July 1, 2005).
  32. “It has always been routine human experience that men sometimes have children after they die. To deal fairly with that reality, decisional law and statutory law have long recognized that it is appropriate to hold the process of identifying takers from a decedent's estate open long enough to allow after born children to receive property from and through their father…The law has traditionally held the class of persons entitled to take from the decedent open long enough to allow a child who was being carried in his or her mother's womb at the time of the decedent's death to receive a share of the property… N.J.S.A.3B:5-8 is part of that traditional recognition… However, the relevant legislative history indicates that the current statute was simply a carryover of earlier statutes going back to at least 1877. The simple fact is that when the legislature adopted N.J.S.A.3B:5-8 it was not giving any thought whatever to the kind of problem we have in this case.” Kolacy, 332 N.J. Super. 593 at 600-601.
  33. Alabama (Ala. Code Section 43-8-47), Arkansas (Ark. Code Ann. Section 28-9-210), California (Cal. Probate Code Section 6407), Colorado (Colo. Rev. Stat. Ann. Section 15-11-108), Florida (Fla. Stat. Ann. Section 732.106), Georgia (Ga. Code Ann. Section 53-2.1(a)), Louisiana (La. Civ. Code Ann. art. 940), Maine (Me. Rev. Stat. Ann. tit. 18-A, Section 2-108), Maryland (Md. Ann. Code Section 3-107), Nebraska (Neb. Rev. Stat. Section 30-2308), New York (N.Y. Estates, Powers and Trusts Law Section 2-1.3), Oregon (Or. Rev. Stat. Section 112.075), Tennessee (Tenn. Code Ann. Section 31-2-108), Wisconsin (Wis. Stat. Ann. Section 854.21(5)) and Wyoming (Wyo. Stat. Section 2-4-103).
  34. Alaska (Alaska Stat. Section 13.12.108), Arizona (Ariz. Rev. Stat. Ann. Section 14-2108), Hawaii (Haw. Rev. Stat. Section 560:2-108), Michigan (Mich. Stat. Ann. Section 700.2108), Minnesota (Minn. Stat. Section 542.2-108), Montana (Mont. Code Ann. Section 72-2-118), New Jersey (N.J. Rev. Stat. Ann. Section 3B: 5-8), New Mexico (N.M. Stat. Ann. Section 45-2-108), North Dakota (N.D. Cent. Code Section 30.1-04-04), South Dakota (S.D. Codified Laws Ann. Section 29A-2-108), Utah (Utah Code Ann. Section 7-2-108) and West Virginia (W. Va. Code Sections 421-8 and 42-1-3f).
  35. Webster's II New Riverside Dictionary, Office Edition (Houghton Mifflin Company 1996).
  36. Alaska, Arizona, Hawaii, Idaho, Michigan, Minnesota, Montana, New Jersey, New Mexico, North Dakota, South Dakota, Utah and West Virginia have adopted the 1990 UPC while Alabama, Arkansas, California, Florida, Louisiana, Maine, Maryland, Nebraska, New York, Oregon, Tennessee and Wyoming have retained the language of pre-1990 Section 2-108 or substantially similar language. Colorado, Georgia, South Carolina, Virginia and Wisconsin also have language that uses conception as the measuring point.
  37. Ronald Chester, “Posthumously Conceived Heirs Under a Revised Uniform Probate Code,” 38 Real Property, Probate & Trust Journal, p. 27 (Winter 2004).
  38. As noted, egg freezing is still a relatively recent scientific breakthrough and has limited availability. But a woman can have a posthumous child using frozen embryos that she banked during her life and that are implanted in a gestational surrogate after her death.

POSTHUMOUSLY CONCEIVED

Eleven states have laws addressing intestacy rights of children* posthumously conceived. A guide

More Requirements on the Books Will Provision in Favor of Child Required
Florida Posthumously conceived child is not eligible to inherit from deceased parent unless provided for by will.
Written Consent of Deceased Parent Required
Colorado, Delaware, North Dakota, Texas, Utah, Washington, Wyoming Deceased parent is not treated as a parent of a posthumously conceived child unless he consented in a record to be a parent of such child (Uniform Parentage Act Section 707.)
Virginia Deceased parent is not treated as a parent of a child born from posthumous implantation of an embryo produced from his gametes unless implantation occurs before the treating physician can reasonably be advised of the deceased parent's death or the deceased parent consented in writing before implantation to be treated as a parent.
Written Consent of Deceased Parent Required and Time Restriction on Child's Birth After Parent's Death
Louisiana Posthumous child may inherit from a deceased parent if the deceased parent authorized his surviving spouse in writing to use his gametes for posthumous conception, the surviving spouse uses his gametes, and a child is born within three years of his death.
Written Consent of Deceased Parent Required, Time Restriction on Child's Birth After Parent's Death, and Notice Requirement
California Posthumous child may inherit from a deceased parent if: the deceased parent consented in writing to be treated as a parent and designated an agent; designated agent gives notice to the person with power to control the distribution of the deceased parent's estate within four months of his death that the decedent's genetic material is available for posthumous conception; and a child is conceived within two years of the deceased parent's death.
* Chart refers to “child” or “children” of the intestate under all circumstances and does not consider whether particular state statutes include collateral relatives born after the intestate's death. Source: Carole M. Bass

POSTHUMOUSLY BORN

Forty-seven states and the District of Columbia have laws addressing intestacy rights of children posthumously born. A guide

Increasing Requirements States Without Statutory Provisions
Connecticut, Mississippi, Vermont No express statutory law.
States That Allow a Posthumous Child To Inherit (Without Further Guidance)
Delaware, District of Columbia, Illinois, Kansas, Massachusetts, Missouri, Nevada, New Hampshire, Oklahoma, Rhode Island, Texas, Washington Posthumous or afterborn child of the intestate inherits as if born during the decedent's lifetime (no reference to conception or gestation).
Indiana, Iowa, Ohio, Pennsylvania Child begotten prior to death, but born thereafter, inherits as if born during decedent's lifetime.
States That Allow a Child Conceived Before a Parent Dies To Inherit No Matter When, After the Parent's Death, the Child Is Born
Alabama, Arkansas, California, Florida, Louisiana, Maine, Maryland, Nebraska, New York, Oregon, Tennessee, Wyoming Child conceived before death, but born alive afterwards, is treated as living at decedent's death. (Pre-1990 Uniform Probate Code Section 2-108 or substantially similar language).
Colorado, Georgia, Wisconsin Child conceived before death, but born alive afterwards, is treated as living at decedent's death if such child survives for 120+ hours. (Similar to Pre-1990 UPC Section 2 108, but with survival requirement.)
Virginia Children conceived before decedent's death but born thereafter, (and children resulting from assisted conception born after decedent's death who are determined to be relatives of decedent under applicable statute), inherit as if born during decedent's life.
States That Limit Inheritance to Children Who Either Are Gestating When a Parent Dies or Born Within 10 Months of a Parent's Death
Alaska, Arizona, Hawaii, Michigan, Minnesota, Montana, New Jersey, New Mexico, North Dakota, South Dakota, Utah, West Virginia Child in gestation at decedent's death is treated as living at decedent's death if such child is born alive and survives for 120+ hours (UPC Section 2 108.)
Idaho Child conceived by natural or artificial means before decedent's death, but born within 10 months afterwards, inherits as if born during decedent's lifetime.
Kentucky, North Carolina Child born within 10 months after decedent's death inherits as if born during decedent's life.
South Carolina Child conceived before decedent's death, but born within 10 months afterwards, inherits as if born during decedent's lifetime.
* Chart refers to “child” or “children” of the intestate under all circumstances and does not consider whether particular state statutes include collateral relatives born after the intestate's death. Source: Carole M. Bass