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Are All Your Children Covered Under Your Illinois Estate Plan?

When people talk about their children, it’s usually pretty clear to whom they are referring. However, when second marriages are commonplace and when assisted reproductive technologies allow many different types of couples to create children by various means, is the line always so clear?
For estate planning purposes, parents must ensure all their children are protected under their will and estate plan. This can include adopted children, stepchildren, children conceived but born after the father’s death, and a relatively new category of “posthumously conceived children.”
This is significant because when parents die without a will, only recognized children will be heirs at law. Further, people may choose to simply split an estate or remainder of an estate between all their children. This way, they do not have to amend a will if additional children are born. However, to inherit an intestate estate, remainder portion of an estate in a will or Social Security benefits, the child must qualify as an heir.

What is the Illinois Law Regarding Adopted Children and Stepchildren?

Adopted children and adopted stepchildren are treated exactly the same under Illinois intestate law as biological children regarding whether they are heirs at law. Individuals adopted after age 18 who never lived with the adopting parent prior to age 18 can inherit from the parent, but not the linear or collateral kindred. 755 ILCS 5/2-4(a).
However, stepchildren who are not adopted by the stepparent would not be considered a child under the intestate law. Therefore, if you wish to have a stepchild inherit, you must either name them in the will specifically, or complete the adoption process for them to be able to inherit an intestate estate, Social Security benefits or a remainder of a will to unspecified heirs.

What About a Posthumously Born Child?

Illinois allows a posthumously born child conceived prior to death to inherit just the same as children already born; however, the child must be “in utero” at the time of death. 755 ILCS 5/2-3.

What is a Posthumously Conceived Child?

Assisted reproductive technology, particularly freezing sperm, eggs or embryos has been making some headlines lately. A common reason for people choosing this path is if they have been diagnosed with cancer and wish to freeze gametes or embryos prior to going through chemotherapy.
A posthumously conceived child is conceived and born after the death of one spouse. This is not limited to fathers who pass away and their wives utilize their frozen sperm or implant frozen embryos to have a child. Husbands can also use frozen eggs or embryos implanted in a gestational surrogate to conceive a child after the death of the biological mother, as well.
Regarding inheritance of Social Security benefits, the US Supreme Court ruled posthumously conceived children will inherit depending on state probate law. Astrue v. Capato, 132 S.Ct. 2021 (2012).

Are Posthumously Conceived Children Covered Under Illinois Intestate Law?

Certain states have now passed legislation allowing posthumously conceived children to inherit under state intestate laws. However, the Illinois legislature has yet to address the situation in the Probate Act. So the rights of posthumously conceived children are unclear at this time in Illinois.

What Does This Mean for Parents Interested in Assisted Reproductive Technologies?

Parents who are interested in conceiving a child via assisted reproductive technologies or by freezing gametes or embryos must speak to a qualified estate planning lawyer for a thorough estate plan, including a testimonial will. A will can address many different types of situations to ensure a surviving spouse and any genetic children born or conceived after death are protected.
The estate planning lawyers of MacDonald, Lee & Senechalle, Ltd. represent Illinois residents for wills, trusts, estate planning and business law throughout the greater Chicagoland area, with offices in Des Plaines and Hoffman Estates.

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