Bradley & Riley PC - Attorneys & Counselors in Cedar Rapids - Iowa City

Please Read Before Selecting Attorney

Choose Attorney Kelly R. Baier Kimberly H. Blankenship F. James Bradley Paul D. Burns Patrick M. Courtney Michael K. Denney Natalie K. Ditmars Jessica A. Doro Jeremy B. P. Hagan Bradley G. Hart Timothy J. Hill Maureen G. Kenney Janice J. Kerkove William T. McCartan Laura C. Mueller William J. Neppl Kevin C. Papp Michael J. Pugh Byron G. Riley Raymond R. Rinkol, Jr. Joseph E. Schmall Gregory J. Seyfer Charles W. Showalter Dean A. Spina Vernon P. Squires Adam S. Tarr Donald G. Thompson Joseph W. Younker

Inheritance Rights of Omitted Children

by Janice Kerkove, Attorney

July 2011 -- If you sign a Last Will and Testament, that document generally determines whether and to what extent your children will inherit your estate. But what happens if you die without a Last Will and Testament or what happens if your Last Will and Testament is not current and some of your children are omitted?

Intestate Estates

If you are an Iowa resident and you die without a Last Will and Testament, Iowa has default rules to specify who will inherit your property. Under Iowa’s default inheritance rules: (a) if you have a spouse and all of your children were born from that relationship, then your surviving spouse will inherit all of your estate; (b) if you have a spouse and children, but some of your children were born from a different relationship, then your spouse will inherit 50% of your estate and your children from a different relationship will inherit the other 50% of your estate; (c) if you leave no surviving spouse, your children will inherit all of your estate. You can avoid Iowa’s default inheritance rules by signing a Last Will and Testament specifying who is to inherit your property.

After-Born Children

Issues can arise if you die with a Last Will and Testament that does not fit your current family situation. A common situation relates to a child who is omitted from your Last Will and Testament because they were born or adopted after the date the Will was signed.

In the ideal situation, your Last Will and Testament would specifically state whether that after-born child is to be included or excluded from inheriting your estate. If your Will does not specify, then Iowa law determines the inheritance rights of that after-born child. Unless it is clear that a child was intentionally omitted from your Will, the after-born child will receive a share equal to what that child would have received under Iowa’s default inheritance rules if you died without a Will.

A less common situation occurs when a child has been conceived and is in utero at the time of your death. Even though the child’s birth occurs after your death, that child is treated as an after-born child and will inherit under the same rules described in the above paragraph.

Posthumously Conceived Children

With the advance of reproductive technology, situations have arisen where genetic material stored prior to the death of a parent was used to conceive and give birth to a child after the death of the parent. Children born in this manner are referred to as posthumously conceived children and their inheritance rights are dependent upon state law. Not only does this issue arise when determining whether the posthumously conceived child is a beneficiary of the deceased parent’s estate, but this issue commonly arises when the surviving parent seeks to obtain social security survivor benefits for the child. The ability to collect survivor benefits varies from state to state, as the Social Security Administration relies on the inheritance law in effect for the child’s state of residence to determine whether a posthumously conceived child is entitled to survivor benefits.

Effective on July 1, 2011, Iowa now has a law clarifying the inheritance rights of posthumously conceived children. In order for a posthumously conceived child to be treated as an after-born child, all of the following must be true:

1. Prior to the birth of the child, the parents entered into a civil or religious marriage ceremony or represented to others that they were spouses by virtue of a common law marriage;
2. The marriage was not dissolved prior to the death of either parent;
3. A biological parent-child relationship is established between the child and the deceased parent;
4. The deceased parent specifically authorized the other parent to posthumously conceive the child. This authorization must be contained in a written document that is signed by the deceased parent. A valid Last Will and Testament bequeathing the reproductive material to the other parent is deemed to be such an authorization;
5. The posthumously conceived child must be born within two (2) years of the death of the deceased parent.

If all of the above conditions are satisfied, then under Iowa law, the posthumously conceived child will inherit in the same manner and to the same extent as an afterborn child. These same rules will be used by the Social Security Administration to determine whether the posthumously conceived child is entitled to survivor benefits.

Effect on Estate Planning & Estate Administration

If you and your spouse have stored genetic materials for reproductive purposes, it is important that you discuss this as part of your estate plan. You should advise your estate planning attorney and other family members of the existence of any stored genetic materials. Under the new Iowa law, the personal representative of your estate is now required to report to the court on whether you left any stored genetic materials.

You should also advise your estate planning attorney and other family members of your wishes concerning how that genetic material is to be handled after your death. For example, your estate planning documents may include instructions to donate or destroy the genetic material or may authorize your surviving spouse to use the genetic materials. Under the new Iowa law, if you do not leave a written document specifically authorizing your spouse to use the stored genetic material, then any posthumously conceived child will not inherit from your estate and will not be entitled to social security survivor benefits.

If you do leave a written document authorizing your spouse to use the stored genetic material, it is important that others know of the existence of such a document. If such a writing exists, the new Iowa law requires the personal representative of your estate to plan for the possibility of a posthumously conceived child by holding back sufficient assets from your estate to satisfy any inheritance tax rights of that potential heir. If no posthumously conceived child is born within two years of your death, then the personal representative has authority to make final distributions of your estate assets. Complications will abound if your personal representative distributes all of your assets and closes your estate before the two year period because they were not aware of your wishes.

For more information, please contact Janice Kerkove.