Wills, Estate & Power of Attorney

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

baby smiling
Written by Russell Alexander ria@russellalexander.com / (905) 655-6335

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 to describe such offspring.

The changes, which came into force on 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person consented in writing to be the parent of such a child prior to his or her death and that the consent was not withdrawn.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.

Stay in Touch

Keep learning about the latest issues in Ontario family law! Subscribe to our newsletter, have our latest articles delivered to your inbox, or listen to our Podcast Family Law Now.

Be sure to find out more about the "new normal", by visiting our Covid-19 and Divorce Information Centre.

About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.