Estate Planning for Posthumous Conceptions

Several situations may prompt a couple to ask this question. Individuals about to undergo cancer treatment or suffer failing health may opt for cryopreservation prior to treatment or before their condition worsens. Couples who take advantage of cryopreservation to freeze sperm and eggs should ask their estate planning attorneys about their unborn children’s inheritance rights in North Carolina. Important estate plan provisions and trust modifications may be necessary. Here are just two issues to consider:

How will estates be distributed? When no Will or trust has been established to designate beneficiaries—or if the documents do not address posthumous conception—North Carolina General Statute §31-5.5 provides that in order for a child to inherit as if born within a decedent’s lifetime, it must be born within 10 months after the decedent’s death. If no special provisions are made, the only way to preserve a child’s rights to receive a portion of the estate, in this instance, is if the child is successfully conceived within a month following the decedent’s death. To prevent this, an estate planning attorney may advise making provisions to allow not only later posthumous conception but also that distribution of an estate or trust be delayed for a few years to allow for the possibility of a biological child being born during that period.

Children entitled to Social Security survivor benefits? In 2012, the court ruled in Astrue, Commissioner of Social Security v. Capato that a child is entitled to collect Social Security survivor’s benefits based on a parent’s earning records only if the child is entitled to inherit from a deceased parent under state law. See the above statute for North Carolina’s requirements.

Couples can help protect unborn children’s inheritance rights by discussing options with a North Carolina estate planning attorney who can craft an estate plan to address these critical areas. Will a posthumously conceived child be entitled to inheritances from their biological grandparents? This issue may also surface in same-sex marriages where a couple’s child may not be biologically related to previous generations. (Same-sex marriages are not legal in North Carolina as of this writing, and are only recognized for federal tax purposes.) Proper estate planning can prevent serious conflicts and ensure the wishes of parents are carried out for their future children.