Wills, Estate & Power of Attorney

Is a Child Conceived After a Parent’s Death Still Entitled to Inherit?

baby smiling

It’s a narrow legal issue, and one that likely does not come up often. But an amendment to the Ontario legislation governing who gets to inherit a deceased’s parent’s property makes it possible for children conceived after a parent’s death – through Assisted Reproductive Technology – to inherit.

The amendment has the cumbersome title of the All Families are Equal Act (Parentage and Related Registrations Statute Law Amendment), 2016, and amends the provincial Succession Law Reform Act (SLRA) and some related legislation. Its main achievement is to amend the definitions of “child” and “issue” in the SLRA to expressly include a child and a descendant who is conceived and born after the death of a parent. The term “posthumously-conceived child” is used describe such offspring.

The changes, which came into force January 1, 2017, recognize the general inheritance rights of posthumously-conceived children, provided certain conditions are met. These include:

• Giving written notice to the Estate Registrar for Ontario. The spouse of the deceased person must give notice indicating that he or she may use the deceased’s “reproductive material” (meaning sperm or eggs or an embryo) to try to conceive a child.

• The child is actually born. Any posthumously-conceived child must be born no later than the third anniversary of the deceased’s death. (The court can extend this in some circumstances).

• Court declaration of parentage. The spouse must apply to the court for a declaration that the deceased person is considered to be the parent of the posthumously-conceived child. This involves the spouse proving that the deceased person consented in writing to be the parent of such a child prior to his or her death, and that the consent was not withdrawn.
The expanded definition of “child” and “issue” applies to the distribution of the deceased parent’s estate, whether or not that parent left a Will.

At Russell Alexander, Family Lawyers our focus is exclusively family law, offering pre-separation legal advice and assisting clients with family related issues including: custody and access, separation agreements, child and spousal support, division of family property, paternity disputes, and enforcement of court orders. For more information, visit us at RussellAlexander.com