Handling Posthumous Children in your Estate Planning

Last update on: Jun 17 2020

Here’s an issue that once never occurred to me but that now should be considered in most estate plans. Because of technology it’s now possible for children to be conceived and born after your death. That also could happen somewhere in your family. One of the questions that arises from this is whether the posthumous offspring should inherit from an estate or be a beneficiary of a trust.

It’s not as simple as it initially sounds. Most people after they think about it say that it’s still their child (or grandchild), and they’d like to provide for it. But what if the birth takes place a considerably time after your death, an eventuality that is increasingly possible.If there’s no time limit, then perhaps the estate or trust can’t distribute assets, or at least not all assets, because there’s the potential for a new beneficiary to be born.

State laws generally don’t deal with this yet or deal with it incompletely. You can deal with it however you want in your will and trusts, simply by stating your wishes. Here’s an article that explains the situation and some options.

Klein said she was aware of only one case in which a decision was made on the ability of a posthumously born child to become a beneficiary of a trust. The Matter of Martin B., decided in the Surrogate’s Court of New York in 2007, centered on a grandfather who had created a trust in the 1960s. His son, who developed cancer, stored his genetic material, which his wife used to produce two children after his death. The question before the surrogate was whether the children born after the man’s death were beneficiaries of their grandfather’s trust.

Because the technologies enabling posthumous birth had yet to emerge when the grandfather created the trust, the documents were silent on the issue. The surrogate had to examine the trust document’s parameters to surmise the grandfather’s intent and whether he would have included the posthumously born children as beneficiaries. She found that the children born of the new technologies should be entitled to inherit in the same way as the naturally born children.