Law of Wills, 2016A

posthumously conceived child. In any action brought to establish such inheritance rights, notice
must be given to all interested parties.
The Reporter of Decisions is to furnish attested copies of this opinion to the clerk of this court. The
clerk in turn will transmit one copy, under the seal of this court, to the clerk of the United States
District Court for the District of Massachusetts, as the answer to the question certified, and will also
transmit a copy to each party.
Notes and Questions
1. Woodward was a Social Security case. However, the Court based its decision on an analysis of the
state’s intestacy system. Was that the right analysis? Should the same standard be applied to cases
involving posthumously conceived children seeking to receive Social Security benefits and to cases
involving posthumously conceived children seeking to inherit under the intestacy system?
2. What is the rule established by the Woodward case? Design a statute based upon the criterion set
out by the court. Would such a statute survive a constitutional challenge?
3. The court in Woodward required that the woman present “evidence that the deceased intestate
parent affirmatively consented to (1) the posthumous reproduction and (2) to support any resulting
child.” What proof would be sufficient to establish a successful claim applying that standard? What
are the pros and cons of that two-fold consent requirement?
4. The Woodward court did not address the time constraints question. Should a time limit be placed
on when the posthumously conceived child must be produced or born? What factors should be
considered when establishing that time period? What are the pros and cons of establishing a specific
time period?
5. What are the pros and cons of treating posthumously conceived children as just another class of
posthumously born children?
6. What are the state interests that are implicated by giving posthumously conceived children the
right to inherit from their fathers?
7. The Restatement (Third) of Property: Wills and Other Donative Transfers § 2.5, cmt. 1 (1999)
provides “[T]o inherit from the decedent, a child produced from genetic material of the decedent by
assisted reproductive technology must be born within a reasonable time after the decedent’s death in
circumstances indicating that the decedent would have approved of the child’s right to inherit. A
clear case would be that of a child produced by artificial insemination of the decedent’s widow with
his frozen sperm.” What are the pros and cons of this rule? Would the outcome of Woodward have
been different if the Restatement rule had applied?
8. In a California case, the court upheld an agreement signed by a man requesting that, instead of
being released to his wife, his frozen sperm be discarded in the event of his death. The man’s widow
claimed that she had a right to use his sperm to attempt to conceive a child. The court stated that
the man’s intent should control because it was his sperm. Estate of Kievernagel vs. Patsy Kievernagel, __
Cal. Rptr. 3d __, 2008 WL 4183504 (Cal. App. 3 Dist.) (Sept. 11, 2008). Should the reproductive
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