What happens if a child is conceived, and then a parent dies? Can the child legally inherit from the deceased parent?
In Florida, a child posthumously born to a deceased parent may be able inherit from that parent, depending on when that child was conceived. While this is a tragic topic, children still need to be provided for after the loss of a parent and the law does recognize that need. There has been a gap between science and the law, but in recent years the Florida legislature as well as the Supreme Court has made an effort to address the particular nuances of government benefits and inheritance of this particular class of children.
It is important to understand the difference between a child conceived before a parent died and a child conceived after death, as this difference affects the child’s ability to inherent from the parent. An “after-born heir” is a child conceived during the life of a parent, but after the death of the parent. Florida Statute §732.106 provides specifically for children born in this manner. The statute says in part, “heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.” This allows a child born after the death of a parent to inherit just like any other child of that person would.
This is different from the case where a parent makes the decision to use the egg, sperm or preembryo of a deceased significant other to have a child. The deceased parent may not have had knowledge of this child before death. According to Florida Statute §742.17 (4), “a child conceived from the eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or preembryos to a woman’s body shall not be eligible for a claim against the decedent’s estate unless the child has been provided for by the decedent’s will.” Essentially, the child posthumously born to a deceased parent who is not provided for in the deceased parent’s will cannot inherit with other naturally born children of the deceased. The circumstances surrounding the conception of the child determine that child’s ability to claim inheritance.