Canada: After-born Children: Succession Law And Posthumous Conception

Last Updated: November 23 2015
Article by Wendi P. Crowe and Tyson A. Wagner

To inherit, an individual must be alive at the death of his or her benefactor, or in utero and later born alive. This was historically quite an inclusive rule; however, reproductive technologies now make it possible for a child to be conceived and born after the death of one or both genetic parents. Various legal issues arise in respect of the rights of a posthumously conceived ("after-born") child. In particular: How does the child establish its parentage? What rights does the child have to inherit from a genetic parent? Is such a child entitled (and if so, to what extent) to claim family maintenance or support from the deceased parent?

Although the proposition that after-born children should be legally recognized as the children of their deceased parents is broadly supported, no consensus has emerged concerning the rights of such children to inherit or to claim support from their deceased parents.

The Alberta Law Reform Institute ("ALRI"), in its Final Report of March 2015 (the "ALRI Report")1 has advanced several recommendations in this regard, calling for changes in some areas of Alberta law, and resisting pressure for change in others. Notably, the ALRI Report advises against some changes that have already been adopted in other jurisdictions to recognize an after-born child's right to inherit from a deceased parent.


The Uniform Child Status Act (2010)2 provides that a posthumously conceived child, or a person who was "married to or in a common-law partnership with" the person who is alleged to be a parent of that child, may apply to court for an order declaring that a deceased person is the child's parent. However, the court may only grant the order if it is satisfied that the deceased's "human reproductive material" was used, and that the deceased consented in writing (and did not withdraw such consent) to be the parent of a child conceived posthumously. Although not binding on any particular province, this uniform act serves as a suggestion for the harmonization of laws between provinces and can be expected to inform discussion and drafting throughout Canada.

British Columbia has incorporated the same principles into its Family Law Act3 (the "BCFLA"), which provides that if a deceased person gave and did not withdraw written consent for the use of his or her reproductive material to a spouse or partner in a marriage-like relationship, and also consented to be the parent of a child conceived after his or her death, then that deceased person and his or her spouse or partner are the parents of any posthumously-conceived child. Similar provisions have been adopted in several U.S. states, as well as in the U.K. and Australia.4

Alberta's current Family Law Act5 ("AFLA") "is structured to identify a child's parents as those persons with a genetic link to the child and those persons who consented to be the child's parents".6 ALRI asserts that "there is no principled reason to deny the after-born child the right to legal parentage in respect of the deceased parent"7 and that any attempt to do so could possibly constitute unacceptable discrimination contrary to the Canadian Charter of Rights and Freedoms. In this respect, ALRI's recommendations are harmonious with both the Uniform Child Status Act (2010) and the BCFLA.

However, ALRI questions whether it is necessary to require consent both to the use of one's reproductive material after death, and (separately) consent to be a parent. In Canada, assisted reproduction is governed by the federal Assisted Human Reproduction Act8 (the "AHRA"), which only allows a surviving spouse or partner to use his or her partner's human reproductive material posthumously with the consent of that donor partner. Therefore, the donor must already have explicitly consented to be a parent to a resulting child. ALRI concludes that the donor's right to revoke that consent during his or her lifetime constitutes an acceptable safeguard against unwanted parentage, making the ULCC and BC provisions requiring further specific consent redundant.

If ALRI's recommendations for amendments to the AFLA are adopted, a further distinction between the AFLA and the BCFLA will emerge. Whereas the BCFLA deems a consenting donor to be the parent of his or her posthumously conceived child, the AFLA would permit interested parties to apply for a court declaration of parentage. The legal costs and additional time required to obtain such a declaration may result in hardship for some individuals to establish parentage in Alberta.

Succession and Dependants' Rights

It has been argued that after-born children should not be permitted to claim an inheritance from or through their deceased parents. Waiting to see if potential beneficiaries will come into existence would cause delays in administering estates and may prejudice the interests of other beneficiaries. The administration of benefits, such as governmental death benefits or insurance payments, would suffer from increased complexity for the same reasons. Conversely, it has also been argued that to deny after-born children such rights is unfairly prejudicial. It has long been an established principle that children born after a parent's death (though conceived earlier) are considered to be children of that parent for all purposes; it would be discriminatory to deny the same rights to children conceived later.

Legislative amendments in several US states address the succession rights of after-born children. The California Probate Code, for example, provides that an after-born child is deemed to have been born within its deceased parent's lifetime (and after the execution of any testamentary instruments) if and only if:

a) such parent has clearly consented to be legally considered the child's parent,

b) the person administering the estate of the deceased parent is promptly notified that another beneficiary may soon come into existence, and

c) the child is in fact conceived within two years.9

Fixing a time-limit, beyond which after-born children have no inheritance rights, is intended to limit the prejudicial effect to other beneficiaries and avoid the complexity of having to wait to see if after-born children come into existence.

Iowa and other states have enacted a similar provision in respect of intestate succession.10 Conversely, section 742.17(4) of the 2015 Florida Statutes11 explicitly states that after-born children have no claim on the estate of their deceased parents unless otherwise specified in a will.

The Manitoba Law Reform Commission (the "MLRC") has recommended that, where there is no will, after-born children should inherit from their genetic parents, and through them from other blood relatives, subject to conditions similar to those imposed in California.12 After-born children of an intestate must be conceived within two years of the grant of administration of the estate; the administrator (and persons whose interest in the estate may be affected) must receive notice within six months of the grant of administration that reproductive material is available for posthumous conception; a biological link between the after-born child and the deceased intestate parent must be proven; and the intestate must have consented in writing to the use of his or her reproductive material for the purpose of posthumous conception, as well as the creation of inheritance rights for any after-born children. The MLRC further recommended that Manitoba's dependants' relief legislation be amended along the same lines, granting after-born children the same support rights as children born or in utero during the lifetime of the deceased.

Notably, the Manitoba legislature has not implemented the MLRC's recommendations. However, the British Columbia Wills, Estates and Succession Act13 (the "WESA") incorporates similar provisions. Pursuant to section 8 thereof, an after-born child (called a "descendant") inherits as if born in the lifetime of and surviving its deceased genetic parent, provided that:

a) the spouse or partner of the deceased gives written notice to the personal representatives, beneficiaries and intestate successors of the deceased, within 180 days from the issue of a grant of representation, that such spouse or partner may use the deceased's reproductive material to conceive a child,

b) such descendant must be born within 2 years of the death of the deceased parent, and

c) the deceased person is in fact the "parent" of the descendant pursuant to the BCFLA.

The WESA provisions are broadly similar to those recommended by the MLRC and enacted in California and other US states. One key distinction: the after-born child has no right to inherit from the relatives of its deceased parent until the actual birth of such after-born child; the estates of grandparents or other relatives may therefore be disposed of entirely before the after-born child becomes entitled to any claim thereto.

An after-born child in BC appears not to have the right to claim maintenance and support from a deceased parent. WESA allows the "children" of the deceased (rather than "descendants") to bring a claim for maintenance. The ALRI Report calls this a deliberate policy decision on the part of the BC legislature.14 Courts have yet to consider the distinction, but it is reasonable to infer that where two different terms are used, they are intended to refer to two different groups.

Given the lack of consensus on these issues, it may not be surprising that the ALRI Report recommends that Alberta not follow the BC approach to inheritance. The Report concludes that amending the AFLA to recognize an after-born child's parentage would have little effect on the law otherwise, and states that "[w]hile the law may appear to operate harshly in denying inheritance or benefits to after-born children, changing the law would be detrimental to the rights of persons who are living when the parent dies. Where a person wants to provide financially for an after-born child, the law allows this to be done by a carefully drafted will".15 Of course, this is not a complete answer because the provisions of such a will are subject to the claims of legally recognized dependants. Nonetheless, the Report rejects placing a time limit on an after-born child's inheritance claim as this "still limits the rights of living persons and subjects them to potential claims of those who have no legal existence".16

The ALRI Report concludes that, as currently formulated, Alberta's dependants' relief and intestate succession laws do not give after-born children any enforceable rights until such children are born alive, and that there is "no sound policy reason" to amend the statutes to provide otherwise.17 Similarly, the Insurance Act, Fatal Accidents Act, Workers' Compensation Act and the federal Canada Pension Plan Act would not, in ALRI's opinion, operate to give after-born children any right to make claims until and unless born alive.


Considerable disparities remain in the approaches taken by different jurisdictions to the rights of after-born children. The differences may become more pronounced as the law evolves. If the Alberta legislature accepts ALRI's recommendations, rights of after-born children in Alberta and British Columbia will differ significantly. Other provinces will have a plethora of options, but arguably ought to address the matter in some fashion to reflect the current state of reproductive technology – Ontario's Law Reform Commission last addressed these issues in 1985.

Given that the law will vary depending on location, it will be advisable to consult with a lawyer in your province if you might posthumously conceive a child, if you are an after-born child, or if your inheritance may be affected by the claim of an after-born child.


1 Alberta Law Reform Institute, Assisted Reproduction After Death: Parentage & Implications, Final Report 106, March 2015, ISBN: 978-1-896078-625, online:

2 Online:

3 S.B.C. 2011, c. 25, s. 28.

4 See, inter alia, Texas Family Code, Title 5, Chapter 160 Sec. 160.707; Human Fertilisation and Embryology Act 2008 (UK) c 22; Status of Children Act 1974 (Vic).

5 S.A. 2003, c. F-4.5.

6 Supra note 1, para. 26.

7 Ibid., para. 43.

8 S.C. 2004, c.2.

9 Online:

10 Iowa Probate Code, section 633.220A; online:

11 2015 Florida Statutes, Title XLII, Chapter 742; online:

12 "Posthumously Conceived Children: Intestate Succession and Dependants Relief", Report #118, November 2008, online:

13 S.B.C. 2009, c. 13.

14 Supra note 1, at para. 69.

15 Ibid., at para. 58.

16 Ibid., at para. 77.

17 Ibid., at para.86.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Wendi P. Crowe
Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Gardiner Roberts LLP
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions