Posthumous Conception occurs when the child is conceived and born after the death of the parent. This can now occur due to advances in reproductive technologies in the field of medicine. Under certain circumstances, children conceived posthumously are entitled to inherit and receive support from the estate of the deceased parent or his or her relatives.
With the new laws that came into force on January 1, 2017, in the All Families Are Equal Act (“AFAEA”), the terms “father” and “mother” have been removed from the Succession Law Reform Act (“SLRA”) and parentage is defined in the rules established in the Children’s Law Reform Act. The AFAEA also expands the definition of “child” and “issue” to include children conceived after the death of the parent, provided that the following conditions are met:
1. Written Notice is given to the Estate Registrar of Ontario that the spouse may use reproductive material to conceive a child posthumously within 6 months of the death of the parent.
2. The birth of the child is no later than three years after the death of the parent. The court may extend this time at their discretion.
3. A Declaration of Parentage must be obtained from the court to establish the deceased person’s parentage.
With these new laws, the new definitions and conditions will apply to a deceased person’s Will, unless a contrary intention is explicitly included. This change will affect Wills drafted after January 1, 2017. When making a Will, the parent should now advise their lawyer if they have stored or intend to store reproductive material and should advise their lawyer whether posthumously conceived children or issue will inherit under the Will. Written Consent to parentage may also be required in this case. If there is no Will, the posthumously conceived child will inherit under the SLRA as long as the aforementioned conditions are met. A Support Claim may also be advanced, but must be done within 6 months of the deceased parent’s death, for which the claim will be stayed pending the birth of the child, if the aforementioned conditions are met.
It must be noted that with the changes in the laws, there would be more delay in administration of estates as additional procedural steps will be added as a result. Estate Trustees will also be subject to additional responsibilities and duties when carrying out the Will and managing the estate.