The answer decided whether tens, if not hundreds, of millions of dollars from the estate of Martin B. went to those children or if all of it was divided among the surviving son and his children.
What made this case even more intriguing was that Martin B.’s wife had the ability to divide the assets in the trusts her husband set up as she saw fit. Lawyers on both sides said even if her posthumously-conceived grandchildren were not considered, she could have cut her living son out of his inheritance.
“Biologically, were they the grantor’s grandkids? Yes,” the lawyer who represented Martin B’s wife Jonathan Blattmachr said. “But legally, were they his grandkids? Most people would say yes.”
Olivieri, who represented the surviving son, had a different interpretation, hinging on the motivation of the widow for conceiving two children after her husband’s death.
“My take is here is a woman who married into a wealthy family,” he said. “The only way she could stay on the gravy train was by having his children.”
“She wasn’t hated. She was going to be OK. But she got herself a better situation,” he added.
While she did not directly benefit from the settlement, her children were ultimately deemed to be descendants and therefore entitled to distributions from the trust.
At the other end of the economic spectrum is the case of Astrue v. Capato. It was brought by Karen Capato against the Social Security Administration to claim benefits for twins conceived after her husband died.
Last year, the US Supreme Court reversed a lower-court ruling and said that state law should determine such claims. Since at the time of his death the father lived in Florida, which does not recognize posthumously conceived children not mentioned in a will, she could not receive social security benefits for them. Right now about a third of the states have laws recognizing the rights of posthumously conceived children; of that group, Ohio is the only other one that does not allow them to received federal benefits.
So how should people wade through this murky area of the law and ensure that children who are genetically linked to them are treated fairly?
In the example of the couple with leftover embryos from their own IVF, Olivieri said he would encourage them to write into their estate documents that frozen embryos exist, but that children born to someone else using those embryos are not considered descendants.
When it comes to setting up a trust for children conceived after death, the conversation shifts. Joshua Rubenstein, managing partner at Katten Muchin Rosenman in New York, who represented the surviving brother’s children in the Martin B. case, said he had pressed clients to consider this issue for more than a decade.
“To anyone who thinks about it, 99 times out of 100 they don’t want to include children born after they’re dead,” he said. “They’ve lived with their own kids, and they want them to get their things and not some kid who was born years later that they never knew.”
Rubenstein said that he had represented both sides of this issue and that he counseled people planning to conceive a dead spouse’s child posthumously to understand that having the right to use genetic material for a child is not the same as having the right to inherit as if that spouse were still alive.