If a trust prohibits children born to unwed parents from inheriting money, there could be problems. Any child conceived posthumously automatically falls into this category, because the parents are no longer married when one of them is dead, Rubenstein pointed out.
If they don’t exclude those children, Klein said clients generally set a time limit for them to be conceived. Otherwise a frozen embryo could be used decades later and be considered a descendant, eligible for a share of an estate that has already been settled.
Of the states that have passed laws clearing up the inheritance rights of posthumously conceived children, eight have set time limits of one to three years.
In New York, proposed legislation that would set inheritance guidelines for posthumously conceived children requires written consent from a person that genetic material can be used posthumously, and sets a time limit on when the child must be conceived and born.
Klein said setting a time limit was important in all cases and should be written into estate plans.
“The fundamental issue is balancing competing interests,” she said. “There is the need for certainty and finality versus the interests of these children born as a result of scientific advancement.”