New York Inheritance By Children Born After A Person Dies Present Many Issues

New York law provides for many requirements regarding inheritance and Last Wills. The New York Probate Lawyer Blog has discussed that when a person dies without a Last Will, his or her estate is distributed to the distributees or “next of kin”. New York Estates, Powers and Trusts Law section 4-1.1 sets forth the priority of the persons who can inherit.

As can be imagined, in the context of inheritance and estate planning, determinations regarding beneficiaries can often be complex. Advances in science and technology involving procedures such as artificial insemination can create situations not clearly covered by existing statutes. For example, what are the inheritance consequences when a person dies and, by utilizing his stored sperm samples, a child is conceived years after his actual death.

This situation has arisen on a number of occasions and has caused controversy regarding rights to receive benefits such as social security survivor benefits. In a recent case decided by the U.S. Court of Appeals for the 4th Circuit, Schafer v. Astrue, the Court encountered a situation where a child was born seven years after a person’s death through the utilization of stored sperm samples. The decedent had been domiciled in Virginia at the time of his death. The Court ultimately decided that the child’s right to receive the Social Security benefits was dependent upon whether the child had the right to inherit under the applicable state law’s inheritance statutes, which in this case was Virginia. The Court found that under Virginia Law a child was required to have been born within ten (10) months of the decedent’s death to be entitled to inheritance rights. Therefore, the Court in Schafer concluded that the child was not entitled to Social Security benefits.

Circumstances as presented by Schafer present unique problems for planning and settling an estate. A Last Will or Trust document can attempt to define all the participants and include in the definition persons born or conceived after the death of the decedent. However, it can be exceedingly difficult to fully cover every possible situation presented by the advances in today’s world. Probating a Last Will and administering an intestate estate can become very involved when unknown or unintended heirs become interested parties to these proceedings. In a recent New York case, In Re Martin B., decided by New York County Surrogate Renee R. Roth on July 30, 2007, children who were born years after a decedent’s death through the process of invitro fertilization were found to qualify as beneficiaries of a trust.

New York Probate Attorney Jules M. Haas has helped many clients over the past 30 years resolve issues relating to intestate estates, estate planning, kinship and estate settlement. I have represented clients in these matters throughout New York including the Bronx and Queens Counties. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

Contact Information