Last month we shared information on the unique estate planning issues related to the inheritance rights of children conceived posthumously. A growing number of community members are cryopreserving their gametes for use through in vitro fertilization. This is a particularly popular process for those diagnosed with cancer and undergoing chemotherapy and for those in the military who are leaving on a tour of duty. The Centers for Disease Control and Prevention report that assisted reproductive technology accounts for only 1% of yearly births in the country. However, the overall use of the technology is rising dramatically. The total number of these births doubled in the last ten years, rising to 60,190 in 2009.
The expanding use of cryopreservation has presented novel legal questions about the rights of children conceived after the death of one of their parents. The inheritance rights of these children remain unclear, particularly as they relate to government benefits and trust participation. Several high-profile legal battles have ensued in the last few years as parents fought with the U.S. Social Security Administration to have their children receive their former partner’s benefits even though the child was conceived after the partner’s passing. The Social Security Administration usually defers to state rules regarding parentage and inheritance rights. Currently, most states only grant inheritance rights to children born after the death of a parent if they are conceived naturally.
Yesterday, Fox News reported on an appellate court decision in one of those cases where the court found that an 8-year-old girl born two years after her father’s death was not entitled to his Social Security benefits. This decision overruled a lower court ruling in the same case which had found otherwise. The appellate judges declared that the federal government’s interpretation of the state law was reasonable, and therefore the denial of benefits was upheld. The resolution in this case and several others like it lead many observers to believe that the United State Supreme Court will be forced to decide the matter soon.
New York has yet to officially recognize the biological relationship between children conceived posthumously and their deceased parents. While cryopreservation is not a common practice, area residents who use these services must be acutely aware of the unique inheritance planning issues that they may face. This complex and unsettled legal matter makes it imperative that community members visit with a New York estate planning attorney to ensure that they are not unfairly surprised by the inheritance complications which may arise down the road.
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