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Does a Child Conceived After the Father’s Death Have Inheritance Rights?


In vitro fertilization (IVF) allows couples who have difficulty conceiving a child on their own to successfully become pregnant. The IVF process allows donor parents to store sperm and egg samples for later conception. But this can also raise some interesting probate questions when those samples are used to conceive a child after the father’s death.

United States Court of Appeals: Husband’s Will Did Not Contemplate Wife Using IVF After He Died

A recent United States Court of Appeals, Steele v. Commissioner of Social Security, addressed just such a case. This case involves a couple who conceived a son through IVF. Sometime later, the husband signed a will that left all of his property to his wife. If she failed to survive him, however, the will left all of the husband’s tangible personal property to his “then living” children. The will further defined the husband’s family to include his wife, his living children, and any “later-born or adopted children.”

The husband died about 18 months after signing his will. After his death, the wife elected to use her late husband’s sperm to conceive a second child through IVF. After that child was born, the wife sought survivor benefits from the Social Security Administration (SSA). Under federal law, the surviving spouse and unmarried minor children of anyone who has worked at least 10 years and paid into Social Security is eligible for such benefits. In this case, the widow claimed the child conceived after her husband’s death was an eligible recipient.

The SSA disagreed. It held that under federal law, the child was not eligible because they were not considered an intestate heir under Florida law. The widow appealed that determination through the federal courts, ultimately reaching the 11th Circuit Court of Appeals. The 11th Circuit then asked the Florida Supreme Court to determine the relevant issues of state law.

Specifically, the Supreme Court had to decide whether Florida Statutes § 742.17 granted any inheritance rights to the child. This statute provides:

A child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre embryos 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.

In this particular case, the Florida Supreme Court held that the child was not “provided for” in the father’s will. Although the will contemplated children who might be born and alive after the will itself was executed, it did not “acknowledge[] the possibility of children being conceived after [his] death.” More to the point, the will left all of the husband’s property to his wife if she survived him, which she did. So there was no scenario where the second child has any claim against the father’s probate estate. As such, the Supreme Court declined to rule on whether there was any scenario where Florida law allowed a “posthumously conceived child” to inherit from an intestate father’s estate.

Contact Mark R. Manceri, P.A., Today

The question of whether someone is a lawful heir can often be tricky, as demonstrated in the case above. So if you are involved in a similar legal dispute, it is best to consult with a qualified Pompano Beach omitted heir lawyer who can review your situation and advise you of your rights. Contact the offices of Mark R. Manceri, P.A., today to schedule a consultation.




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