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Posthumously Conceived Heirs

By Michael C. Harman

“The evolving human productive technology opens up some wonderful possibilities, but it also creates difficult issues and potential problems in many areas.” – Hon. Reginald Stanton, Assignment Judge of the Superior Court of New Jersey, Morris County, in Estate of Kolacy.

The science of cryobiology introduced the world to the previous impossibility of a posthumously conceived child. In the years that have followed, courts have been forced to address myriad unique social and legal issues incident to a child conceived after the death of its father. With little precedent to guide them, judges have been asked to answer the most elementary of probate questions: Is this a child of the decedent? If so, does this child have a right to inherit under the decedent's will or as an intestate beneficiary? From here, courts will continue to face an endless barrage of increasingly more difficult questions of inheritance: How long must a class of beneficiaries remain open? What responsibility does the Personal Representative of the estate have to ensure that the class is closed? Does the mother have an obligation to inform the court or the Personal Representative of her intent to conceive?

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