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The Law Should Change As Medical Technology Develops

In the past ten to fifteen years medical technology has changed in leaps and bounds.  The law has not necessarily kept pace with new technological developments.  No clearer example can be found than the inheritance rights of children conceived through in vitro fertilization.

More people are conceiving children with medical assistance than ever before, thanks to the process of in vitro fertilization. Often a couple may choose to have sperm, eggs or even embryos frozen upon learning that one of the spouses or partners is diagnosed with a condition that may be terminal or have a detrimental effect on fertility.  Certainly, one can understand and empathize with the couple wanting to have a child notwithstanding the impending death of one of the future parents.

An appellate court ruled in, July 2012, that children conceived through in vitro fertilization after the death of the father whose sperm were frozen were not entitled to social security survivor benefits.  The decision was based upon Florida law which did not permit the children to inherit under the intestacy law (dying without a Last Will & Testament).  Social security reasoned that its laws are intended to help children who were supported by the deceased parent (wage earner) during the parent’s life time. Under the facts of this case, the deceased parent had never supported the children as they were technically conceived and born after the father’s demise.

Since there was no dispute that the decedent’s sperm had been used to fertilize the wife’s egg, that the couple were legally married, and that the children were his, it seems only fitting that our state inheritance statutes should change with the times.  Currently, Florida Statute 732.106 (Click here) says that an heir of the decedent who is conceived beforehis/her death, but born after the death, inherits as if the child was born during the decedent’s lifetime. This statute was last amended in 1997 and is now archaic. It needs to be updated to include children who are conceived after the decedent’s death.   Similarly, the Social Security regulations need to be updated to accommodate these children.

Until the state and federal laws change, it is recommended that anyone who is in the process of conceiving meet with a qualified elder law attorney to have a Last Will & Testament prepared and executed even if it is done prior to the birth of the child.  While you may not be able to reference the child by name, you can provide that all children whether conceived or born before or after your death, inherit.

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