J. Kelly Kennedy, Attorney/CPA, PLLC

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Inheritance rights for posthumously conceived children in Florida

In order to have children after a spouse's death, a couple may bank the eggs or sperm. This ensures that although a life-threatening condition may prevent the person from having a child, conception may still take place by artificial insemination or in vitro fertilization.

According to Florida statutes, children conceived posthumously may not be able to claim inheritance, including assets. The U.S. Supreme Court, a few months back, applied this statute and ruled that Florida children conceived through artificial insemination and born after the parent's death, cannot claim inheritance. It also stated that the child cannot get Social Security survivor benefits.

Recently, a similar issue was raised in a Nebraska court. In this case, the person was suffering from muscular cancer and had frozen his sperm to enable conception. The child was conceived through artificial insemination and was born within nine months of his death. Later, the wife applied for Social Security benefits for the child. This was approved by the administrative court but the appeals court reversed the decision.

It was stated in this case that since conception occurred after the father's death, the child does not survive the parent. Hence, the child cannot claim the parent's inheritance. This case is still to be decided by the U.S. District Court. Also, the law's constitutionality has been challenged in federal court.

Florida law has provided a solution to the issue of inheritance. According to the statute, although a child conceived after the father's death cannot claim inheritance, the parents may write a will to that effect. The person may grant the estate and assets to the child conceived posthumously in the will, thus ensuring that the child has a claim to the inheritance.

Any parents contemplating this issue should consult a probate attorney who is experienced in this complicated area of law. The legal professional can explain the various options available to the person for including his children and other dependents in the will.

Source: San Francisco Chronicle, "No survivor's benefits for posthumously conceived," Margery A. Beck, Nov. 16, 2012

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