Bradley & Riley on the inheritance rights of omitted children – LIVING WELL Magazine

Inheritance Rights of Omitted Children

By Janice Kerkove, Attorney, Bradley & Riley, Linn County LIVING WELL Magazine 

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 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.

To learn more, contact Bradley & Riley PC. They offer a broad range of services, expertise and experience to clients. Reach them at 319-363-0101 in Cedar Rapids or 319-358-5560 in Iowa City.