Law of Wills, 2016A

unless the deceased individual consented in a record that if assisted reproduction were to occur after
death, the deceased individual would be a parent of the child. 67
Questions
1. UPA § 707 requires the individual to consent to the posthumous use of his or her gametes by
submitting a written record. The statute does not define “record”. What type of writing should be
necessary to satisfy the writing requirement? In light of the purpose of the writing requirement, what
components should the writing contain?
2. What are the advantages and disadvantages of the UPA’s approach?
3. If the UPA had been applied in the Woodward case would the outcome of the case have been
different?
Baldwin's Ohio Revised Code Annotated
§ 2105.14 Posthumous child to inherit
Descendants of an intestate begotten before his death, but born thereafter, in all cases will inherit as
if born in the lifetime of the intestate and surviving him; but in no other case can a person inherit
unless living at the time of the death of the intestate. 68
West's Louisiana Statutes Annotated
§ 391.1. Child conceived after death of parent
A. Notwithstanding the provisions of any law to the contrary, any child conceived after the death of
a decedent, who specifically authorized in writing his surviving spouse to use his gametes, shall be
deemed the child of such decedent with all rights, including the capacity to inherit from the
decedent, as the child would have had if the child had been in existence at the time of the death of
the deceased parent, provided the child was born to the surviving spouse, using the gametes of the
decedent, within three years of the death of the decedent.
West's Annotated California Code
§ 249.5. Posthumous conception; child of decedent deemed born in decedent's lifetime;
conditions
For purposes of determining rights to property to be distributed upon the death of a decedent, a
child of the decedent conceived and born after the death of the decedent shall be deemed to have
been born in the lifetime of the decedent, and after the execution of all of the decedent's
testamentary instruments, if the child or his or her representative proves by clear and convincing
evidence that all of the following conditions are satisfied:
67 Some version of the UPA has been adopted by the following states: Delaware, North Dakota, Texas, Utah,
Washington and Wyoming.
68 Susan N. Gary, Posthumously Conceived Heirs: Where the Law Stands and What to Do About It Now, 19 Apr. Prob. & Prop.
32, 34-35 (March/April 2005)(stating “But, Ohio enacted this statute in 1953, so it is unlikely that the legislature
considered the issue of children conceived after the decedent’s death.”).
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