Can a Child, Unborn When the Parent Dies, Still Inherit?

Can a Child, Unborn When the Parent Dies, Still Inherit?

In a recent case a husband and wife were trying to have children by IVF. Five embryos were produced. One of the embryos was successfully implanted and the wife gave birth to a child. The remaining four embryos were frozen.

Tragedy struck less than a year after the birth of the child. The husband passed away suddenly. He died without a will. This meant that his estate was to be divided up according to the “rules of intestacy”. At the time of the death this meant that the widow would receive a specified fixed amount plus a third of the residue of his estate, and any children of the deceased would receive the remaining two thirds of the residue of the estate.

The executor of the estate was unable to work out whether the four embryos should be regarded as children of the deceased for the purpose of distributing the estate. So the executor sought a declaration from the Court. The Court considered an existing legal concept called en ventra sa mere. This concept says that if an estate is to be divided between a “class of beneficiaries” (such as, “my nieces and nephews”) and one of the class was conceived but not born at the date of death, then if that child is subsequently born alive then he or she will inherit as if they had already been born at the date of death of the deceased.

The Court found that the principle of en ventra sa mere does in fact apply to frozen embryos. This meant that the four embryos in this case, if successfully born, would be able to receive an inheritance when they reach the age of eighteen years.

This case deals with a very specific set of facts. However, it is an important demonstration of just one of the many principles at play when determining who is a beneficiary.