How are heirs that are born after decedent's death treated under Tennessee law (when they are conceived before death or after death)?

Determining what happens to heirs that are conceived before death and born after death is relatively easy because the Tennessee legislature has provided a specific statute on this issue.  The question of what happens under Tennessee law to posthumously born children where the conception is accomplished post-death by in vitro fertilization or artificial insemination is much more difficult because the Tennessee legislature has not provided us with guidance to date.

A.         Conception before death – born after death

T.C.A. § 31-2-108 provides that "after born heirs" (those that are conceived before the decedent's death but born after the decedent's death) inherit just like they would if they would have been born during the lifetime of the decedent.  T.C.A. § 31-2-108 provides as follows:

Relatives of the decedent conceived before the decedent's death but born thereafter inherit as if they had been born in the lifetime of the decedent.

As a result, as long as the relative (this could be a child or a collateral relative that somehow inherits from the decedent) is conceived before the decedent's death, then they are considered to have been born during the life of the decedent. 

Obviously, this can cause interesting questions about the date of conception of the baby for purposes of determining whether they can inherit from the deceased individual.  If the relative was conceived after the decedent's death then they are not entitled to be considered to have been born during the lifetime of the decedent.  This could, in some circumstances, cause them to not inherit from the deceased.  The statute does not define or address how to resolve this issue if the date of conception is close enough to death that the parties and court cannot determine which came first, the death or the conception.

B.         Conception after death – by artificial insemination or in vitro fertilization

The above discussed Tennessee statute does not address what happens to posthumously born children where the conception is accomplished post-death by in vitro fertilization or artificial insemination.  These are children that are born after the death of the decedent but are born from the decedent’s sperm.  Tennessee has not addressed this issue in this context to date.  This issue has been getting more and more press in recent years due to the great increase in the number of individuals who are born by artificial insemination or in vitro fertilization after the death of the father. 

A recent United States Supreme Court decision of Michael J. Astrue, Commissioner of Social Security v. Karen K. Capato, 132 S.Ct. 2021 (2012) addressed a similar issue of whether twins that were born to a women through in vitro fertilization after the death of her husband could recover surviving child Social Security insurance benefits under the Social Security Act.  The Court ultimately held that since the children could not inherit from the decedent under Florida’s intestacy law, then they were not entitled to Social Security survivor benefits. Astrue at 2029 – 2031. 

The Supreme Court of Arkansas decided an even closer issue in Finley v. Astrue, 372 Ark. 103 (Ark. 2008).  In that case the Court answered the question of whether a “child, who was created as an embryo through in vitro fertilization during his parents' marriage, but implanted into his mother's womb after the death of his father, inherit from the father under Arkansas intestacy law as a surviving child?” Finley at 104.  The Arkansas answered this question by stating that the answer was “No” then the Court asked the Arkansas legislature to address this issue as follows:

While the parties would have us define the term “conceive,” we decline to do so in the instant case. Our role is not to create the law, but to interpret the law and to give effect to the legislature's intent.  In vitro fertilization and other methods of assisted reproduction are new technologies that have created new legal issues not addressed by already-existing law.  Were we to define the term “conceive,” we would be making a determination that would implicate many public policy concerns, including, but certainly not limited to, the finality of estates. That is not our role. The determination of public policy lies almost exclusively with the legislature, and we will not interfere with that determination in the absence of palpable errors.  With this is mind, we strongly encourage the General Assembly to revisit the intestacy succession statutes to address the issues involved in the instant case and those that have not but will likely evolve.

(Citations omitted) Finley at 111, 112.

Although these cases do not directly determine what happens in Tennessee to after born heirs conceived post-death by in vitro fertilization or artificial insemination, it certainly shows the importance of the issue.  The Tennessee legislature should provide guidance on this issue in order to get in front of this potential problem so Tennessee trial courts and Tennessee residents have a better and more complete understanding as to how this situation should be handled under Tennessee law.