For most people, one of the primary reasons for creating an estate plan is to ensure that loved ones, such as a spouse and children, are provided for in the event of their death. If providing for your children is at the top of your motives for creating an estate plan, have you considered where after-born children fit into that plan? At one time, the issue of after-born children was relatively easy to explain and even easier to incorporate into an estate plan. In the 21st century, however, it is much more complicated. To help clear things up, the estate planning attorneys at the Law Offices of Kobrick & Moccia discuss after-born children and what your options are for including them in your estate plan.
Children Conceived Prior to Your Death and Born after Your Death
Estate planning –when done properly – is a lifelong process. It is unlikely that the estate plan you create in your early 20s will still be relevant and sufficient by the time you are in your 30s, much less your 40s or beyond. The reason for this is simple – life is not static. Instead, life is ever-changing. As you grow, so will your estate and your family. Consequently, your estate plan should grow as well. When your first child is born, you will likely review and update your current estate plan to include that child in your Last Will and Testament and/or a trust agreement. Like many people, however, you may not get around to adding a second or subsequent child by name in your estate plan. If you were to die unexpectedly without doing that, the omission is not likely a fatal flaw. If an experienced estate planning attorney helped you create your estate plan, he/she should have included future children in your estate plan. For example, your Will may provide a clause that defines the term “children” to include the children alive at the time you execute the document and any future born children of yours. Gifts you make in your Will and then be made to “my children equally” for instance. As long as you addressed children in your estate plan, a child born prior to your death but not named specifically in your estate plan should be covered as should a child conceived but not yet born prior to your death. The one scenario in which this can be more complicated is if paternity of the child must be established because it is not clear that the child is yours and/or someone is questioning the paternity of the child. Thanks to the advent of DNA testing, however, this can be resolved easily enough in time.
Children Conceived and Born after Your Death
The much more complicated question is what happens to a child conceived after your death, legally referred to as a posthumously conceived, child? Advances in science and technology now make it possible for a child to be both conceived and born after the death of a Testator. At any given moment, there are thousands of frozen embryos in the U.S. just waiting to be implanted and the number of infants born through artificial means has doubled in recent years, If you die, and your partner/spouse decides to move forward with implantation, can that child inherit from your estate? Under New York inheritance laws, only children conceived before your death are legally recognized as having a right to your estate. Children conceived through artificial means after your death would have no right to your estate in the absence of a provision in your Will; however, not all state laws view this issue the same. If you are a resident of another state at the time of your death, a posthumously conceived child might have the right to inherit from your estate. Many states have passed legislation dealing directly with the issue of “posthumously conceived” children, requiring both parties to have executed a document prior to death acknowledging their acquiescence to a posthumously conceived child. Absent that agreement, the child cannot inherit from a deceased parent. Because this area of the law remains far from settled, very clear language in your estate plan is essential to ensure that your wishes with regard to an after-born child are honored.
Contact Estate Planning Attorneys
For more information, please download our FREE estate planning worksheet. If you have questions or concerns relating to estate planning in the State of New York, contact the experienced estate planning attorneys at the Law Offices of Kobrick & Moccia by calling 800-295-1917 to schedule your appointment.
Saul Kobrick
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