New Illinois Law Amends Inheritance Rights of Unborn Children

This year, the Illinois Legislature passed the Illinois Parentage Act, which makes a significant change to probate law in regards to posthumous children. Under the terms of the new provisions, a posthumous child will not be considered a decedent’s child for inheritance purposes unless the child was in utero at the time of death. Although this is the default law in Illinois, testators can make alternative plans in their wills. It can be difficult to create a will or trust, especially when a testator owns a significant amount of property, so if you or a loved one are considering creating a will or wish to modify an existing will, it is critical to retain the services of an experienced estate planning lawyer who can ensure that all of your descendants are provided for in the event of your death.

The Rights of Posthumous Children

According to the new law, a child born through in vitro fertilization (IVF) cannot inherit under the Probate Act if the implantation occurred after the decedent’s death, unless the testator specifically provided otherwise in his or her will. Alternatively, even if a testator did not specify what is to be done with an inheritance in this type of situation, he or she can still have the peace of mind that comes with knowing that any unborn children will be provided for. In drafting the law, legislators were primarily driven by public policy, which recognizes the right of all children to the physical, mental, emotional, and financial support of their parents.

To this end, posthumous children automatically receive the same share of an estate that they would have received if they had been born during the decedent’s lifetime, as long as they were in utero at the time of the decedent’s death. Unfortunately, this means that if a man or a woman uses a decedent’s egg or sperm to reproduce through in vitro fertilization after the decedent has already passed away, that child, although the biological offspring of the decedent, will not qualify as a child under Illinois inheritance law.

Again, this is only the default law in the state, which means that testators are free to draft a will containing alternative provisions that provide for any children yet to be born.

Contact an Experienced Estate Planning Attorney Today

Estate planning is a difficult process, especially when testators are required to provide for children that may not yet be born. However, it is very important to take these issues into consideration when planning an estate to ensure that all of a decedent’s loved ones are provided for, regardless of when they are born. If you live in the Northbrook, Evanston, Skokie, Glenview, Glencoe, or Highland Park areas and have questions or concerns about planning your own estate, please contact Orlowsky & Wilson, Ltd. Attorneys at Law by completing and submitting one of our standard contact forms and a member of our dedicated legal team will assist you in scheduling an initial consultation with an experienced estate planning lawyer.

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