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Estates and Wills and Posthumous Conception

There was an interesting case in Florida Law Weekly regarding a child conceived by in vitro fertilization after decedent death. In this case, the child was not entitled to take from the decedent’s estate because the decedent’s will did not provide for the child. 

The Florida Supreme Court found that the term “provided for” as used in section 742.17(4) Florida Statute means that the testator actually left something to the posthumously conceived child through a will. As part of that requirement, a will must show that a testator contemplated the possibility of a child being conceived following his or her death. The Subject’s will’s reference to “later-born” children does not cover posthumously conceived child because mention of later born children refers most naturally to children born after will was drafted but conceived before decedent’s death. The court stated that even assuming posthumous conception was in some generic sense contemplated by the decedent, the child could not have received anything under the will which conveyed all property to decedent’s spouse if she survived him and, if not, to his “then living children.”

In this case, the Florida Supreme Court was presented with two certified questions from the US Court of Appeals for the Eleventh Circuit about the meaning of a Florida statute that speaks to the inheritance rights of a child conceived from eggs or sperm of a person or persons who died before the transfer of  their eggs, sperm, or pre embryos to woman body. The Statute says that such children can only take from a decedent’s estate if they are provided for in the decedent’s will.

The Florida Supreme Court held that provided for in this context means that the will must give something to the child as contemplated by the decedent when the will was made. The Court held that in this case it did not satisfy that. Therefore, the Court did not answer whether Florida law allows a posthumously conceived child who is provided for in the decedent’s will to inherit the decedent’s intestate personal property.

If you have more questions regarding an Estate Administration matter, you may call Ann Marie Giordano Gilden at Ann Marie Giordano Gilden, P.A. at 407-732-7620 and set an initial consultation. You may also visit my website at: https://www.annmariegildenlaw.com

This article is for informational purposes only and does not form an attorney client privilege.