JURIST Guest Columnist Daniel Perrone, St. John’s University School of Law Class of 2013, is the author of the first article of a 15-part from the staffers of the Journal of Civil Rights and Economic Development. Perrone examines the lack of provision for posthumously conceived children under New York inheritance laws…

In New York, some innocent children, namely, posthumously conceived children, are suffering the consequences of the state legislature’s failure to sync the law with technology. Advancements in biotechnology have enabled people to conceive genetically related children, even after their own death. These children, however, face the dire consequence of being denied inheritance rights, referred to herein as a “class gift,” merely because of the circumstances surrounding their birth. Admittedly, posthumously conceived children do not come into the world the way the majority of children do, but they are children, who should be granted the same rights, benefits and privileges that other children enjoy.

New York’s current class gift statute is called the Estates, Powers & Trusts Law (EPTL). EPTL § 2-1 defines a class gift as a disposition of property to persons who are identified by a common characteristic (i.e., by a group label), such as children or issue. As described, this group label seems to extend class membership to posthumously conceived children. For instance, EPTL § 2-1.3(a)(3) extends class membership to non-marital children. Since posthumously conceived children are non-marital children, they appear to qualify as class members under this section. Likewise, EPTL § 2-1.3(a)(2) extends class membership to children who are conceived before disposition of the class gift becomes effective. Thus, it is a logical assumption that posthumously conceived children, who are conceived prior to disposition, are to be included as class members under this provision.

A literal interpretation of EPTL § 2-1.3, however, proves to be problematic. EPTL § 2-1.3 was enacted in 1966, long before the legislature could have anticipated that children would, or even could, be conceived after one of their parents has died. In fact, In re Martin B., the only New York case to directly address this issue expressly states that EPTL § 2-1.3 was not intended to extend class membership to posthumously conceived children. Rather, EPTL § 2-1.3 is interpreted to limit class membership to children who were conceived during their parents’ lifetimes.

To correct this inequity, the EPTL must be amended to extend class membership to posthumously conceived children. However, things are not quite that simple. Certainty and finality in determining class membership are critical to society’s interest in the orderly administration of estates. Accordingly, estates cannot be held open for years to allow for the mere possibility that a child may be conceived at some indeterminable point in time. On the other hand, donative intent, as well as the rights of posthumously conceived children, deserves respect and must be taken into account by the legislature.

To adequately strike a balance between these competing interests, the legislature should focus on the inherent nature of class gifts. To create a class gift, EPTL § 2-1.3 requires only that a group label describe the beneficiaries. Thus, the legislature should codify a presumption that the creator of a class gift intends to include, as class members, all those who fall within that group label, including posthumously conceived children. This does not, however, prevent the creator of a class gift from explicitly excluding such children. Rather, it simply creates a default provision that balances the competing interests.

In addition to creating a presumption of intent, the legislature should treat posthumously
conceived children just like any other class member. Since posthumously conceived children are non-marital children, they should have to meet the requirements set forth by EPTL § 2-1.3(a)(3). That section requires non-marital children to establish maternity or paternity to qualify as class members and, therefore, posthumously conceived children should have to do so as well. Similarly, to qualify as class members, posthumously conceived children should have to abide by EPTL § 2-1.3(a)(2), which requires children to be conceived before disposition of the gift becomes effective.

Together, these requirements strike a balance between the competing interests discussed above. On the one hand, they provide for certainty and finality in the administration of estates by closing class membership once disposition of the gift becomes effective. On the other hand, they reflect the fact that posthumously conceived children are, and should be treated, just like any other class member. Thus, these requirements eliminate the possibility that donative intent may be frustrated, while providing posthumously conceived children with the same rights, benefits and privileges that other children enjoy.

There are, of course, those who argue that granting posthumously conceived children
inheritance rights might lead to fraud and other forms of unethical behavior that could negatively impact the distribution of estates. To address this problem, the legislature should simply require the deceased parent’s written consent to the posthumous use of his or her genetic material.

Additionally, the deceased parent should be allowed to limit the persons who are allowed to use his or her genetic material to conceive a child, thereby reducing any potential for fraud or abuse by those wishing to conceive a child strictly for inheritance purposes.

The legislature must keep in mind that posthumously conceived children are still children. These children are born after one of their parents has died, which is burdensome enough as it is. The law should not add to that burden by denying these innocent children the right to inherit.

Daniel Perrone is the Editor-in-Chief of the Journal of Civil Rights and Economic Development. His experience includes internships with Kramer, Dillof, Livingston & Moore, St. John’s University School of Law’s Elder Law Clinic and the New York State Supreme Court. He earned a Bachelor of Arts in political science from St. John’s University in 2010. Currently, Perrone interns for the Honorable A. Kathleen Tomlinson in the US District Court for the Eastern District of New York.

Suggested citation: Daniel C. Perrone, Expanding Inheritance Rights to Posthumously Conceived Children, JURIST – Dateline, Aug. 29, 2012, http://jurist.org/dateline/2012/08/daniel-perrone-inheritance-rights.php.