May 8, 2014. An interesting topic I came across the other day involved a very narrow and small class of beneficiaries: posthumously conceived children, a subset of after-born children. As testament to the nature of things, there will always be new wrinkles to what you would have thought were already settled issues. After-born children is one of these issues. An after-born child is, patently enough, a child born after a person dies. The child is conceived before death, born after. And generally, “a person” meant the father, though I am certain there is an emergency room scenario that points to the exception. Though a novel issue at one time, statute and general drafting practices brought themselves up to speed so that it would seem unnatural to not read an after born child into a deceased’s estate plan where the plan takes care of children. Of course a parent would want to take care of their kid.
Posthumously conceived children provide the modern complication. A posthumously conceived child is one that is conceived after death. The technologies that make this possible are widely known. Its effect on estate planning, less so. The child might not be conceived shortly after death. It could be years. Is it natural to assume, then, that the parent would intend to take care of a child so far removed? The preservation of the necessary material to facilitate the conception might be a good indicator that the intent was there, but I think we can imagine some scenarios and qualifications to support the hypothesis that this might not be true in every case. The other impact to consider is third-party estate plans, such as trusts, which apply some benefit for the children of the particular deceased. Would that grantor intend to provide for the posthumously conceived child? This seems more questionable. There may be some measure of time which, after it has run, filial obligations become more attenuated. Given these uncertainties, a planner is best suited to overcome them by specifically accounting for them. Don’t leave the outcome to a chance interpretation. Ask about it, then pen it.
For more information on estate planning or to learn more about how to plan for the unexpected, contact the Goosmann Trust Law Counsel at info@goosmannlaw.com or call 712-226-4000.
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