Children Conceived After Death and Inheritance – Written by Zachary Thiffault

The laws governing inheritance are among the oldest elements of the common law system, and as with most areas of law, meshing these centuries old standards with modern realities is a slow process. Questions of inheritance are impacted by many factors; is there a Will, is the Will valid, was the person of sound mind when they gave instructions? When a person dies intestate (without a will) there may be questions and even tension within families.

The legal understanding and composition of the family unit has evolved beyond the Nuclear Family. Statistics show an increase in in vitro fertilizations or surrogacy, presumably due to reduced costs for procedures. Statistics also show that people are having children later in life, and that greater access to medical treatments has allowed people who are terminally ill or work in high risk professions, to plan ahead. This last reason creates the possibility that a child can be conceived following a parent’s death (know as posthumous conception). Provincial legislatures are slowly, but steadily, addressing the new possibilities such developments have on inheritance rights.

As of 2016, Ontario’s Succession Law Reform Act (SLRA) says that if certain steps are followed, a child conceived after death is entitled to inherit from their deceased parent’s Estate subject to the procedural steps outline in s. 1.1(1) of the legislation.

Further, SLRA s.47(10) outlines that children conceived after death may become beneficiaries and inherit from an intestate (dying without a will) parent. This right to inherit is engaged the day of the child’s birth. As medical capabilities continue to reshape the possibilities of a family unit’s composition, inheritance law has finally begun to catch up with the times and 21st century realities.

The most effective way to ensure you are providing for your loved ones, the most effective way is to plan ahead.

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