Posthumously Conceived children
September 24, 2024 § 1 Comment
With advances in technology, babies can now be created without sexual intercourse. The use of assisted reproductive technology has been increasing. In 2021, 2.3% of infants born in the United States were conceived with assisted reproductive technology. Under traditional law, if a child was not in utero at the time of the parent’s death – they were not considered the child of the deceased. Today, however, a deceased person can be the biological parent of a child long after their death.
Children conceived by assisted reproductive technology raise unique challenges for the traditional inheritance system. First, the parent who predeceased before the child was conceived may have no knowledge that their biological material would be used to assist in reproduction, and therefore may not want the after born child to have a share of their estate. Second, any inheritance that is provided for the child will diminish the amount that is taken by children who were born or conceived prior to the parent’s death, and could disrupt the orderly administration of the estate if there are no limitations on how long after the parent’s death a child can be conceived.
The issue is how to balance the competing concerns between the innocent child, the deceased’s interest in controlling where their property goes, and the efficient administration of estates. It should be noted that the outcome impacts issues beyond the inheritance system itself. Survivorship rights are often determined by whether the person has the right to inherit under a state’s descent and distribution law. The Social Security Administration considers a posthumously conceived child as a non-marital child who is only entitled to benefits if they are entitled to inheritance rights under state intestacy law.
In 2024, Mississippi adopted House Bill 1542 that sets out the rights of children conceived by assisted reproductive technology (methods of conception without sexual intercourse). The law provides that children born through assisted reproductive technology can inherit a child’s share of the deceased parent’s personal property if certain procedures are followed. The law is tilted the Chris McDill law in memory of Chris McDill. McDill was diagnosed with cancer and he and his wife Katie were unable to conceive before his death. Katie subsequently had a child through IVF, but was not able to claim survivor benefits through the Social Security Administration because the child was not entitled to inherit under Mississippi law.
First, the parent must have died without disposing of all of their personal property. Therefore, a posthumously conceived child’s rights are solely in personal – not real – property. Furthermore, if the deceased has disposed of all of their personal property in a will to someone other than the posthumously conceived child – the subsequently born child is not entitled to inherit.
Next, there must be a document signed by the deceased parent and the person that is planning on using the genetic material that the now-deceased parent consented to the use of genetic material in assisted technology after their death. The requirement that there be a record of consent from the deceased parent is to recognize and respect the reproductive desires of the deceased.
After death, the personal representative and the court must have been given notice or had actual knowledge of the intent to use genetic material in assisted reproduction not later than six months after the death of the parent. Thereafter, the embryo must be in utero not more than thirty-six months after the parent’s death, and the child must be born not later than forty-five months after the parent’s death and must live 120 hours after birth. The purpose of setting this time frame is to give the surviving parent an opportunity to grieve and contemplate whether to use the genetic material while, at the same time, ensuring that the estate will not remain open indefinitely.
If the deceased was divorced or legally separated from the individual seeking to use the genetic material, there is a rebuttable presumption that the decedent did not consent to use of their genetic material in assisted reproductive technology.
If the requirements above are satisfied, the court shall set aside a child’s share of the qualifying personal property. Each qualifying child would share in that child’s share of the estate. The court should then distribute the remainder of the estate as provided by law of descent and distribution and close the estate for all purposes except distribution of the set-aside property. Once the eligible children (born and survive 120 hours) are ascertained, the court should distribute the set-aside property to those children. If there are no eligible children, the court should distribute the estate according the descent and distribution statute. The statute expressly provides that it is the intent of the law that “an individual deemed to be living at the time of the decedent’s death” under the statute would qualify for federal survivor benefits.
Blood Money
July 30, 2014 § 6 Comments
Many years ago I represented two young children whose mother had died while on an ill-fated catfishing trip to the flooded Lost Horse Creek in northeast Lauderdale County. She had been invited on the outing by her husband, who only the week before had taken out $400,000 in life insurance policies on her life, with himself as sole beneficiary. The policies had double-indemnity provisions for accidental death.
The husband claimed that the wife had slipped in the rain-soaked mud, fell into the creek and must have hit her head on a tree limb, knocking her unconscious and either killing her by the blow, or she drowned.
The coroner disagreed, finding that she had suffered more than one heavy, crushing blow to the back of the skull with a blunt object — an injury that was inconsistent with the circumstances the husband claimed — and there was no water in her lungs, indicating that she was dead before she fell in the creek.
The husband was indicted for murder, and the proof at trial included that he had offered a local bar owner $5,000 to kill her some ten months before he himself did the deed. The husband was convicted of murder. His appeal was unsuccessful. Hammond v. State, 465 So.2d 1031 (Miss. 1985).
I filed a petition in chancery court to have the husband disqualified from recovering the insurance proceeds, which had been interpled by the insurance companies. He contested the matter, but the chancellor ruled that the proceeds were property of the woman’s estate, the only heirs of whom were the two sons. There was no appeal.
The law of Mississippi is that a life insurance beneficiary who wilfully takes the insured’s life may not recover the insurance benefits. Gholson v. Smith, 210 Miss. 28, 29, 48 So.2d 603, 604 (Miss. 1950). In the case of Dill v. Southern Farm Bureau Life Ins. Co., 797 So.2d 858, 866 (Miss. 2001), the court ruled that the standard of proof is by a preponderance.
The same rule applies in inheritance.
In the recent case of Young v. O’Beirne, adm’r of the Estate of Young, decided by the COA on June 3, 2014, the COA found that Mr. Young, who indisputably had murdered Mrs. Young, could not have any interest in her estate, based on MCA 91-1-25, which provides that “[i]f any person wilfully cause[s] or procure[s] the death of another in any way, he shall not inherit the property, real or personal, of such other; but the same shall descend as if the person so causing or procuring the death had predeceased the person whose death he perpetrated.”
A similar code section is found at MCA 91-5-33, which provides that a person who has wilfully caused or procured the death of another person shall not take any real or personal property of the decedent under any will, testament or codicil, and as to any such devise the testator is deemed to have died intestate.
Note that a plea of guilty to manslaughter, standing alone, is not sufficient to support a finding that would preclude inheritance under either statute. Hood v. VanDevender, 661 So.2d 198 (Miss. 1995). That would not preclude the chancery court, however, from finding that the act rose to the level of wilfullness that would invoke either statute, because the killing need not amount to murder, but the proof only needs to establish that it was wilful and without justification in law. Henry v. Toney, 211 Miss. 93, 50 So.2d 921 (1951).
The courtly Mr. Tom Ethridge, who taught equity and chancery practice at Ole Miss Law School years ago when such things were still worthy subjects of legal academia, used to say, “Equity means do right.” Do right. That is behind these laws. I recently told a young lawyer that if you’re uncertain about what the law might be in a given situation, figure out what the most honest, forthright thing to do might be, and you’ll probably be pretty close to what the law requires. Just do right.
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