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 before
his/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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