Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Friday, January 20, 2012

Article on Posthumously Conceived Children in West Virginia

Images-5Andrew S. Felts (Senior Editor, Volume 114 of the West Virginia Law Review; J.D. Candidate, West Virginia University College of Law, 2012) recently published his article entitled What Sex-Ed Didn't Teach You: Addressing the Inadequacies of West Virginia Code Section 42-1-8 and The Future of Posthumously Conceived Children, 114 W. Va L. Rev. 239 (2011). The introduction from the article is below:

Reproduction after death” is an anomaly of sorts. This notion is not an entirely new concept; however, it is a process that only realized its full potential in recent years.Modern advances in reproductive science, increasing the success rates and usage of related procedures, have caused a shortcoming in the law with regards to its ability to dispose of cases and issues caused by these contemporary changes. More specifically, the growing popularity of posthumous conception causes a predicament when deciding the extent of the child's right to inherit from the deceased parent and right to receive other benefits such as Social Security.

Science has caught up to and passed the limits of what the current law, at least in states such as West Virginia, can appropriately handle concerning the posthumously conceived child. Therefore, the time is upon West Virginia for a change in its law to adequately address the issues related to posthumous conception in such a way that meets the needs of interested parties and is in accord with current social policy.

Several states have made decisions concerning posthumous conception. However, some of those states only dealt with the issue by means of adjudication as the cases were presented. In order to prevent uncertainty upon presentation of a posthumous conception case, the West Virginia legislature must preemptively act by altering West Virginia Code section 42-1-8, which deals with descent and distribution. An alteration in this statute will prevent a future debacle on the bench in terms of deciding how best to interpret the inheritance rights of a posthumously conceived child.

Part II of this Note provides background and a history of the development of posthumous conception and its intricacies, leading to the complex legal issues related thereto. Part III considers externalities such as constitutional rights to post-mortem reproduction, property rights of ownership, the rule against perpetuities, and each of these items' effect on the rights of posthumously conceived children. Then, Part IV examines West Virginia's relevant statute, section 42-1-8, and highlights its inadequacies as they relate to the posthumously conceived child. Part V includes a case study and comparison of current statutes addressing the rights of posthumously conceived children, which is necessary in order to provide West Virginia with a breadth of experience and samples upon which to base its own decision on how best to deal with this issue.

A critique of select states' current statutes, specifically geared towards posthumously conceived children, will explain differences, as well as provide a cost-benefit analysis of the various approaches to the posthumous conception dilemma. Finally, after noting controlling public policy concerns, Part VI offers a recommendation as to where West Virginia needs to go in order to most effectively handle posthumously conceived children's rights to inheritance and receipt of other benefits. Ultimately, this Note argues that a posthumously conceived child should be able to inherit from all living members of the decedent's family except for the decedent himself, with no time restraints, so long as the decedent provides explicit, written consent.


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