Estate Planning

Will Manitoba Give Inheritance Rights to Posthumously Conceived Children?

By Hull & Hull LLP

The Manitoba Law Reform Commission has recently recommended that legislation be put into to place to give children who are artificially conceived after a parent's death the same rights to the parent's estate as children who were already living. 

The impetus behind the recommendation is the growing use of artificial conception techniques and the recently new possibility of conceiving a child after a partner's death.  The objective is to deal with this in legislation, before cases start to appear in court. 

In several provinces, the law provides that children who have been conceived while a parent is living (but are born after death) can have an interest in the parent's estate.  But so far, there are no laws that provide for children who are conceived after a parent's death (for example, by in vitro fertilization).    

The commission is recommending that the law be limited to children who are conceived within two years of the deceased's death and that a parent who anticipates conceiving must give notice within six months of the deceased's death.  In the interim, the estate would remain frozen.  

It will be interesting to see what the law looks like if it comes to fruition.  Allowing a prospective parent to freeze an estate for eighteen months could create serious administrative problems, particularly with respect to the payment of debts owing to creditors.  In addition, I wonder what impact legislation like this would have on the deceased's obligation to surviving family members, particularly dependants. 

Another issue that comes to mind is whether legislation would just result in people including provisions in their wills specifically limiting the class of beneficiaries to those alive at the individual's death. 

In any event, reproductive technology is a rapidly advancing area of science and it seems inevitable that at some point this will become an issue.  It will be interesting to see if other provinces start to consider introducing similar legislation.

Have a great spring weekend!

Megan F. Connolly    

Full post as published by Toronto Estate Law Blog on March 20, 2009 (boomark / email).