gitana1
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The After-Born Child
Very helpful post, gitana1. As always, thanks for your time and expertise.
1. I’ve read the paralegal article you link and I can’t find any reference whatever to posthumous children. Can you quote the part that is relevant?
2. I take it you explicitly disagree with the nolo.com claim that in Illinois, “Relatives conceived before -- but born after -- you die inherit as if they had been born while you were alive.” This does not refer only to a child of a decedent, but to the posthumous (or "after-born") child vis-à-vis other relatives.
http://www.nolo.com/legal-encycloped...-illinois.html
3. I find it hard to understand why a posthumous child is only relevant to the estate of a parent. For example, the Uniform Probate Code says:
Section 2-104(a)(2) An individual in gestation at a decedent’s death is deemed to be living at the decedent’s death if the individual lives 120 hours after birth.
http://www.uniformlaws.org/shared/docs/probate code/2014_UPC_Final_apr23.pdf
This is general language, not language specific only to parents, but applicable to grandparents, uncles, etc.
4. The idea of posthumous grandchildren is understood in the law of trusts. According to West's Encyclopedia of American Law, second edition (2008), as an example, if the person making a will or trust restricts it to only grandchildren existing at the time of her death, this still would include an unborn grandchild conceived before her death (the relevant part is near the end, BBM):
The existence of an after-born child has significant legal ramifications upon gifts made under wills and trusts. …
Under the law of trusts, a gift to a class is one in which the creator of the trust, the settlor, directs that the principal of the trust should be distributed to a specifically designated group of persons, such as to grandchildren, who are alive at a certain time, such as at the settlor's death. Any child born after this time would not be entitled to a proportionate share of the trust principal unless conceived before the settlor died. An after-born child born eleven months after the settlor's death, therefore, would not share in the principal, since the class had closed nine months after the settlor's death.
http://legal-dictionary.thefreedictionary.com/After-Born+Child
5. In a post I made last September, I noted that the idea that a conceived child not yet born at the time of someone else’s death is considered “born” for various legal purposes and this concept has very long historical roots, dating back to Roman law. (Sheila thread Number 2, post #175, with links.)
I recognize that this aspect of the discussion is only relevant if Sheila did not name alternate beneficiaries.
Your point that “[t]ypically, people name alternate beneficiaries in trusts” is particularly important, and could make the discussion of intestate rights of an after-born child completely moot.
It's from your link, which I was responding to:
(755 ILCS 5/2-3) (from Ch. 110 1/2, par. 2-3)
Sec. 2-3. Posthumous child.) A posthumous child of a decedent shall receive the same share of an estate as if the child had been born in the decedent's lifetime.
(Source: P.A. 84-390.)
I cited my link to show that the next in line if there was no living spouse, child, grandchild or parent would be her brother. But let me investigate further. Your cites are pretty specific!