Can Children Born After Their Parent’s Death Inherit?

San Diego, like many other large cities is on the cutting edge of technology and has a number of sperm banks, egg banks, and cryopreservation companies for storage of reproductive material. With the advent of techniques such as invitro fertilization and cryopreservation of sperm, eggs, and embryos, children may be born many years after the death of a parent raising a variety of legal issues.

A child that is born after the death of one or both parents is referred to as a “posthumous” child. The law in California recognizes children born posthumously by specifically providing in the California Probate Code Section 248 – 249.8 that such children have the same inheritance rights as children born before the death of their parent.

The new reproductive technologies can potentially create a number of other problems. An example is whether a child born from frozen sperm or embryos can qualify for social security benefits. A U.S. Court of Appeals for the Ninth District has said they do get social security benefits. As modern technology evolves, the law is going to have to address these and undoubtedly other issues.

If you have genetic material stored such as sperm or eggs for posthumous reproduction, you should mention this to your estate planning lawyer. The Probate Code requires that the decedent specify that his or her genetic material can be used after death for conception. Issues could also arise later as to whether some assets held in a trust for example, would have to be held back for distributions to posthumous children. If you have any questions about posthumous children or any other estate planning issue, call us or e mail us at Law Office of Scott C. Soady, A Professional Corporation.