On Nov. 21, 2014, Governor Cuomo signed into law EPTL §4-1.3 and amendments to EPTL §11-1.5 to provide a statutory solution to inheritance rights of a posthumously conceived child in New York. New York now joins a group of 20 other states1 tackling this evolving area of uncertainty due to advancements in the field of reproductive technology. While tax planning may be on the decline due to increased exemption amounts, new planning areas centered around digital assets and now, posthumously conceived children, are emerging as an important component to the estate planning process. This article provides a background to the unsettled inheritance rights of a posthumously conceived child, reviews the new law and discusses certain observations that flow from the passage of the new law.

Background

In general, genetic material such as semen, eggs and embryos can be frozen and preserved for many years allowing for the conception and/or birth of a child to occur after the death of one or both genetic parents. We have all heard about the story of a person suffering from a terminal illness who freezes genetic material so that a child can be conceived after a premature death. Or, the story of a young man who is sent off to combat who stores his sperm so that his spouse can have the option to conceive a child if he fails to return home.

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