Abstract
In the past decade, thousands of men have frozen their sperm for their own use in case surgery, exposure to chemicals or biological hazards, or various injuries cause them to have difficulty conceiving later. If the man dies and his widow or partner uses his frozen sperm to conceive a child, what legal issues are posed for construing the man's will? If the will leaves a devise to the testator's "children," should we hold his estate open for years in case a child is later born? If the will makes no mention of the testator's children, should a postmortem child inherit as a pretermitted heir? The increasing number of requests to obtain frozen sperm after men have died, plus at least eleven claims filed with the Social Security Administration on behalf of children born years after their fathers' deaths using frozen sperm, indicate that the phenomenon of postmortem children is real. Four recent court cases have grappled with the issue of whether a child conceived postmortem can inherit in intestacy, but so far no court has dealt with the problem of construing the dead father's will. This Article proposes a new framework for resolving these disputes, using common law concepts dating back to ancient Egypt, Greece and Rome to try to resolve the issue without legislation.
How to Cite
46 Ariz. L. Rev. 91 (2004)
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