What are the inheritance rights of a child conceived posthumously?

When drawing up a will it is important to consider whether children are stepchildren or adopted and children conceived posthumously (after the death of a parent) may not have the rights you would expect.

When and how do the rules differ?

Rules already differ depending on when the donation of eggs or sperm or the creation of an embryo took place. If the proposed extension from 10 years to 55 years takes place, it will be important for those affected to keep in touch with changing legislation.

Signed written consent to use an egg or embryo posthumously is necessary for treatments after 6th April 2009 and it is anticipated that being able to demonstrate continued consent will be essential.

Whether a person is treated as a parent of a child is important.

If a person is not treated as a parent, then the child will not have any right to receive their share of the parent’s estate on death where there is no will. Even if there is a will, then if an estate passes to ‘children’ it relies on a child falling legally within the definition of a ‘child’. Inheritance tax exemptions and reliefs may be affected where they rely on a child and parent relationship.

Do children conceived posthumously have inheritance rights?

Children conceived after the death of a parent do not have inheritance rights. To have otherwise could mean claims against estates that may have been administered many years ago.

• A child conceived during the lifetime of a couple, will be a child of them if a husband or partner or wife dies during the pregnancy.
• However, if pregnancy occurs after the demise of a husband/civil partner/wife, the use of the husband’s sperm collected during lifetime or embryo created during lifetime can only be used with the consent of the deceased and whilst the husband/civil partner can be named on the birth certificate as the parent, he is not treated as ‘parent’ for purposes of inheritance.
• If pregnancy occurs from donor sperm after the demise of a husband/civil partner/wife, then the husband/civil partner/wife cannot then be included as parent on the birth certificate.

Comment from a contentious probate specialist

Rachel Shaw, contentious probate solicitor at Holmes & Hills’ comments “Regarding their inheritance, other than being named on the birth certificate, when a child is conceived posthumously, the deceased father is not classed as the child’s legal parent and as such the child would not inherit under the intestacy rules. As such, the potential to challenge an estate by such a child is hindered. It is hoped, therefore, that the UK law is reviewed so that it is in step with how society is developing, and modern families are forming.”

To talk to a local lawyer about the issues raised in this article, please contact Holmes & Hills' probate & estate administration specialists.