The science has definitely gotten ahead of the law, says William Zabel, an estate lawyer with Schulte, Roth & Zabel LLP in New York. It's complicated because a will may say, "I leave my estate to my son's issue or descendants," but is an in vitro baby "my son's issue"? What about a baby that was born of eggs from the wife but who came from donated sperm?
"Is a child born from sperm taken from a dead person killed in an automobile accident considered an heir for inheritance purposes?" Zabel asks.

While assisted reproductive technology raises a whole host of issues in the probate process, the concept of postmortem conception may be the most nettlesome. People can clearly state in their wills their intentions with regard to frozen embryos and sperm. But what about the children they didn't anticipate? With advancements in biotechnology making postmortem sperm retrieval possible, these once unthinkable problems could become a reality.

"It's such a small subset of people who do that, you'd think if they wanted [the children] to inherit, they'd have said so," says Joshua Rubenstein, an estate attorney with Katten Muchin Rosenman LLP in New York. Rubenstein says that this is the way most states see it too-that the deceased should have expressed their intentions and that those with a claim can't wait forever, perhaps only two to three years.

There's no question some of the cases are brought by gold diggers whose gravy train has ended. But sometimes it's simply that a husband has died in a car crash, Rubenstein says.

When science precedes the law, different states come up with patchwork solutions. About one-third of the states have statutes or case law that determine parentage when a person's gametes are used after their death. Ten states have statutes excluding the decedent from being a parent of the resulting child, unless the states are satisfied by what's in writing.

Seven of the ten-Colorado, Texas, Utah, Washington, Delaware, North Dakota and Wyoming-adopted a section of the 2000 version of the Uniform Parentage Act. This says that if a spouse dies before placement of eggs, sperm or embryos, the deceased spouse is not a parent of the resulting child unless he has explicitly stated in a record that he considers himself so when assisted reproduction occurs after his death.

Florida enacted a similar statute but said any child conceived postmortem must also have been provided for in the decedent's will. California and Louisiana not only require the decedent's consent to use their gametes postmortem, but they specify a timetable within which the gametes must be used to produce that child.

The result is that in these ten states, the decedent may be considered the parent, allowing the child to inherit his wealth, if the statute's "writing requirements" are satisfied. If they have not been satisfied, then the decedent will not be considered the parent, and the child will not inherit from the estate.

"A lot of states have said there has to be consent on record," says Teresa Baird, an attorney with Fairfield & Woods, a Denver-based firm that has made a name for itself in this field.

But that's when there are explicit statutes. In other states like New Jersey, Massachusetts and Arizona, some issues have inadvertently been determined by case law. A case in New Jersey involved the estate of William Kolacy, whose wife had two children using his sperm a year after he died. His wife wanted the children to receive Social Security survivor benefits. The New Jersey Superior Court looked at the state's existing statute, which said relatives of the decedent conceived before his death but born afterward inherit as if they had been born before the decedent died. But the court found the state did not address the issues of reproductive technology. It decided to look at another statute, which said a child born within 300 days of termination of a marriage by death is a child of the marriage nonetheless. Likewise, it said a child born more than 300 days after one's spouse's death was not a child of the marriage. To that end, it found the children conceived of Kolacy's sperm were indeed his progeny.