London,
24
October
2018
|
13:17
Europe/Amsterdam

Inheritance and posthumous conception

The face of modern families is changing. In particular, reproductive technologies make it possible for a child to be conceived after their parent's death.

This raises a large number of issues both ethical and legal. This article deals with inheritance and the hurdles faced by children conceived after the death of their biological parent.

In the case of a woman whose egg is used to conceive a child after her death, the starting position is that there will be no legal connection between her and the child as the woman who carries the child is the legal parent. However, this is a complex area in its own right which will not be covered in this article.

The position is different for men whose sperm is used to conceive a child after death. Since the Human Fertilisation and Embryology (Deceased Fathers) Act 2003 came into force, the deceased man will be named as the father on the child's birth certificate (provided that he was the husband or partner of the child's mother).

However, this does not translate into broader legal or inheritance rights for the child. This means that children who have been conceived posthumously using a deceased man's sperm may face particular and unique challenges in inheriting from their deceased father's estate.

We consider various scenarios below:

  • Where a child conceived posthumously is provided for expressly in his/her father's Will, the child will inherit under the terms of the Will. However, this is relatively uncommon, not least because statistics demonstrate that the issues surrounding posthumous conception using the father's sperm are often not discussed or considered. A survey of respondents of reproductive age carried out in 2012 found that just 4% had discussed posthumous conception with their partners and an even smaller number had recorded their wishes in writing [1].
  • Likewise, a specific bequest by which a testator leaves assets to his "children" would, on the face of it, include any child conceived posthumously. This is subject to the child being conceived and the gift vesting within the relevant perpetuity period [2].
  • Things become more difficult when a father of child conceived posthumously dies without a Will. According to statistics, nearly 60% of people in the UK do not have a Will with this figure increasing to 76% for the 18-34 age group [3].
    In terms of inheritance, other than being named on the birth certificate, where a child is conceived posthumously, the deceased father is not regarded as the legal parent of a child and would not inherit under the Intestacy Rules. This is a matter of deliberate public policy. In the Parliamentary debates on the 2003 Act, the drafters of the legislation were concerned that, given that sperm could be stored for many years, allowing the donor to be considered as a legal father for inheritance purposes could create significant delays in the administration of estates.
  • A child conceived posthumously whose father was intestate could not bring a claim for financial provision under the Inheritance (Provision for Family and Dependants) Act 1975.

In conclusion, these scenarios highlight one of a number of legal issues facing modern families where the law in the UK is sadly out of step with modern societal developments. It is hoped that in time there will be law reform to address these issues to bring the law in this jurisdiction more in line with some other common law countries.

If you would like more information or advice about this topic please contact Naomi O'Higgins or Emily Mailer.

Howard Kennedy will be exhibiting at The Fertility Show 2018 at Olympia London on 3-4 November. Our lawyers will be on hand to provide straightforward legal advice to help individuals and couples who are looking to build and complete their family through surrogacy, IVF or adoption. Find out more about the exhibition here.

 

[1] S.E. Barton, K.F. Correia, S.Shaler, S.A. Missmer, L.S. Lehmann, D.K. Shah and E.S. Ginsburg, "Population-based Study of Attitudes Towards Posthumous Reproduction" [2012] 98 Fertility and Sterility 735.
[2] N. Maddox, "Inheritance and the Posthumously Conceived Child" [2017] Conveyancing and Property Lawyer
[3] https://www.thisismoney.co.uk/money/news/article-3807497/Nearly-60-Britons-not-written-will.html