Law of Wills, 2016A

ear his children. Some may question the wisdom of such a course of action, but one can certainly
understand why a loving and caring couple in the Kolacys’ position might choose it. Be all that as it
may, once a child has come into existence, she is a full-fledged human being and is entitled to all of
the love, respect, dignity and legal protection which that status requires. It seems to me that a
fundamental policy of the law should be to enhance and enlarge the rights of each human being to
the maximum extent possible, consistent with the duty not to intrude unfairly upon the interests of
other persons. Given that viewpoint, and given the facts of this case, including particularly the fact
that William Kolacy by his intentional conduct created the possibility of having long-delayed after
born children, I believe it is entirely fitting to recognize that Amanda and Elyse Kolacy are the legal
heirs of William Kolacy under the intestate laws of New Jersey.
Questions
1. Since death ends the marriage, a posthumously conceived child is technically a non-martial child.
As mentioned in the previous chapter, every jurisdiction has a statute that addresses the inheritance
rights of non-marital children. Should those statutes be applied to determine the inheritance rights
of posthumously conceived children? Why? Why not? Do you agree with the Khabbaz court’s
reasoning on the issue?
2. What are the pros and cons of amending the Social Security Act to make posthumously conceived
children eligible for benefits?
3. If the reasoning of the Woodward case was applied, what would be the outcome of the case?
4. In the Khabbaz case, the Court stated that “In order to remain alive or in existence after her father
passed away, Eng would necessarily have to have been ‘alive’ or ‘in existence’ at the time of his
death.” Is there a way to define survivor that would permit Eng to satisfy the definition? Is a being
in existence if the component parts leading to its creation already exist? Would Eng have a stronger
argument for existence if she was a pre-embryo at the time her father died?
5. Khabbaz clearly wanted to be the parent to his posthumously conceived children. Are his
reproductive rights violated by the court not fulfilling his desire to be legally recognized as the
parent of any children produced using his stored sperm?
As previously mentioned, most cases addressing posthumous reproduction involve children
conceived using artificial insemination. Moreover, all of the statutes regulating the inheritance rights
of posthumously conceived children are limited to children created utilizing artificial insemination.
The next case deals with the rights of a child conceived through the use of in vitro fertilization.
Finley v. Astrue, 270 S.W.3d 849 (Ark. 2008)
DANIELSON, J.
This case involves a question of law certified to this court by the United States District Court for the
Eastern District of Arkansas in accordance with Ark. Sup.Ct. R. 68 and accepted by this court on
June 28, 2007. See Finley v. Astrue, 370 Ark. 429, ----S.W.3d----(2007) (per curiam). The question
certified is the following:
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