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Illinois Probate Act 755 ILCS 5/2-3: Posthumous Child

A will is an important part of an estate planning, as it is the best way to avoid the pitfalls associated with intestacy. Intestacy refers to pass away without a will. In the absence of the instructions in a will related to how to dispose of an estate, the estate administrator has no choice but to follow the requirements of Illinois’ rules on intestate succession. Included in these rules are provisions related to show to treat children who are born posthumously. These provisions are becoming increasingly important as more people are choosing to freeze embryos and use medical advances to have children in nontraditional ways. If you are concerned about the inheritance of a child who was born posthumously, contact an experienced Chicago intestate succession lawyer at the Law Offices of Stephen Bilkis & Associates.

Estate Distribution Under Intestate Succession

When an individual dies with a will, it is referred to as passing away testate. On the other hand, if the individual dies without a will, it is referred to as passing away intestate. Since there is no will, then Illinois essentially creates a will for the decedent. The Illinois Probate Act states who will inherit. If the decedent passes away with children, then the children are entitled to receive a share of the estate. If there is not a surviving spouse, the children will receive 100% of the estate. If there is a surviving spouse, the spouse will receive 50% of the estate and the children will share equally in the remaining 50% of the estate.

While this may seem like a straightforward formula, there can be complications. One such potential complication is where the child was born posthumously. In the case of a posthumous child, the court will look at the requirements of the posthumous child provisions of the Illinois Probate Act.

Posthumous Child

A posthumous child is a baby who is born after the death of a parent. Under the “posthumous child” provisions of the Illinois Probate Act, a posthumous child has the same rights of inheritance as a child born during the lifetime of a decedent, as long as the child was in utero at the time of the decedent’s death.

If the child was not utero at the time of the death of the parent, the child does not have the right to inherit unless certain conditions are met, including:

  • Born of the deceased parent’s gametes
  • Born within 36 months of the death of the parent
  • Decedent gave consent to the use of the gametes in writing
  • The estate administrator received written notice of the existence of and use of the gametes
  • Decedent did not give clear indication of intent to exclude child from estate

If you are concerned about the inheritance of a baby who was born posthumously, it is important that you contact a Chicago intestate succession lawyer to discuss your concerns.

Avoiding Intestacy Issues

Whether the problem is related to a posthumous birth or any other inheritance issue, the best way to avoid complications related to the disposition of an estate is to plan in advance by creating a will. With a will you can include very clear instructions about who you want to receive your assets, making it clear to the executor as how he or she should wind up your affairs during probate. This is particularly critical in instances where you have frozen embryos, or in cases where there may be question as to the legal relationship between a child and a parent. If you address the child’s legal relationship in your will and other estate documents, then there will not be an inheritance question and it will not be necessary for the probate court to apply the posthumous child rules in the Illinois Probate Act.

Related Statutory Provisions
  1. Descent and distribution: Illinois Probate Act, 755 ILCS 5/2-1
  2. Children born out of wedlock: Illinois Probate Act, 755 ILCS 5/2-2
  3. Adopted child: Illinois Probate Act, 755 ILCS 5/2-4
Illinois Probate Act, Section 2-3- Posthumous Child

Sec. 2-3. Posthumous child.

(a) For purposes of the descent and distribution of property passing by intestate succession under this Act, a posthumous child of a decedent shall receive the same share of an estate as if the child had been born in wedlock during the decedent's lifetime, but only if: (1) the posthumous child is in utero at the decedent's death; or (2) in the case of a posthumous child not in utero at the decedent's death, the conditions of subsection (b) are met.

(b) A posthumous child of a decedent not in utero at the decedent's death meets the requirements of this subsection (b) only if all of the following conditions apply:

(1) The child is born of the decedent's gametes, whether those gametes form an embryo before or after the decedent's death ("gametes").

(2) The child is born within 36 months of the death of the decedent.

(3) The decedent had provided consent in writing to be a parent of any child born of such gametes posthumously and had not revoked the consent prior to death.

(4) The administrator of the estate receives a signed and acknowledged written notice with a copy of the written consent attached within 6 months of the date of issuance of a certificate of the decedent's death or entry of a judgment determining the fact of the decedent's death, whichever event occurs first, from a person to whom such consent applies that:

(i) the decedent's gametes exist;

(ii) the person has the intent to use the gametes in a manner that could result in a child being born within 36 months of the death of the decedent; and

(iii) the person has the intent to raise any such child as his or her child.

The requirements of this subsection impose no duty on the administrator of an estate to provide notice of death to any person and apply without regard to when any person receives notice of the decedent's death.

(c) For the purpose of determining the property rights of any person under any instrument, a posthumous child of a decedent who is in utero at the decedent's death shall be treated as a child of the decedent unless the intent to exclude the child is demonstrated by the express terms of the instrument by clear and convincing evidence.

(d) For the purpose of determining the property rights of any person under any instrument, a posthumous child of a decedent not in utero at the decedent's death shall not be treated as a child of the decedent unless one of the following conditions applies:

(1) the intent to include the child is demonstrated by the express terms of the instrument by clear and convincing evidence; or

(2) the fiduciary or other holder of the property treated the child as a child of the decedent for purposes of a division or distribution of property made prior to January 1, 2018 under the instrument based on a good faith interpretation of Illinois law regarding the right of the child to take property under the instrument.

(e) For purposes of subsection (d), the use in the instrument of terms such as "child", "children", "grandchild", "grandchildren", "descendants", and "issue", whether or not modified by phrases such as "biological", "genetic", "born to", or "of the body" shall not alone constitute clear and convincing evidence of an intent to include posthumous children not in utero at the decedent's death. An intent to exclude posthumous children not in utero at the decedent's death shall be presumed with respect to any instrument that does not address specifically how and when the class of posthumous children are to be determined with respect to each division or distribution provided for under the instrument as well as whose posthumous children are to be included and when a posthumous child has to be born to be considered a beneficiary with respect to a particular division or distribution.

(f) No fiduciary or other person shall be liable to any other person for any action taken or benefit received prior to the effective date of this amendatory Act of the 100th General Assembly that was based on a good faith interpretation of Illinois law regarding the right of posthumous children to take property by intestate succession or under an instrument. If after the effective date of this amendatory Act of the 100th General Assembly the administrator of an estate does not receive the written notice required by subsection (b), the administrator of the estate shall not be liable to any posthumous child not in utero at the decedent's death or any person claiming for or through the child.

(g) The changes made to subsection (a) of this Section by this amendatory Act of the 100th General Assembly apply to the estates of all decedents who die on or after January 1, 2018. For the purpose of determining the property rights of any person under any instrument, the changes made by this amendatory Act of the 100th General Assembly apply to all instruments executed before, on, or after the effective date of this amendatory Act of the 100th General Assembly.

Contact the Law Offices of Stephen Bilkis & Associates

As experienced intestate succession attorneys serving Chicago, we know how difficult it is for the family when a loved one passes away. It is even more heartbreaking when a parent passes as away before a child is born. In addition, addition to the emotional issues associated with the death of a parent, there are may also be complicated inheritance issue if the child was born posthumously. If you and your family are struggling with estate issues related to intestacy or related to a posthumous child, discuss your concerns with a skilled attorney at the Law Offices of Stephen Bilkis & Associates who has the experience and resources to help. Contact an intestate succession attorney in Chicago at 855-454-5529 to schedule a free, no obligation consultation regarding your case. We serve individuals throughout Chicago.

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