Birth after Death in the U.S.
It is a scientific fact that children can now be born long after a parent has died. This, in turn, has created the need for the law to catch up to medical advancements. Although the issue (no pun intended) raises a number of questions, the simplest and most profound is this: should a child conceived and born after a parent's death have a claim to inherit from the parent's estate?
In the United States, while most states allow children conceived before a parent's death to inherit, current state laws vary on whether a child conceived after a parent has died can inherit from an estate.
In 2008, the Uniform Probate Code adopted a provision that would automatically include any children born to a surviving spouse within 45 months of a married decedent's death. However, according to US News and World Report only two states -- Colorado and North Dakota -- have adopted the provision.
In the U.S., the entitlement of a posthumously conceived child to the deceased parent's Social Security benefits will be decided by the Supreme Court later this year in Astrue v. Capato. When the deceased was diagnosed with cancer, he froze sperm. After he died, his wife used the sperm to conceive and applied for surviving child's insurance benefits but was denied. The U.S. Court of Appeals for the Third Circuit ruled that as long as the children were "dependents" of the wage earner, they are entitled to benefits. It will be interesting to see what the Supreme Court has to say on this issue,.
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