In this article...

In this article, we explain the Illinois Parentage Act, including:

  • What is the Illinois Parentage Act?  
  • What are the rights of children who have been born after their parents have passed away?

In this article, we explain the Illinois Parentage Act, including:

  • What is the Illinois Parentage Act?  
  • What are the rights of children who have been born after their parents have passed away?

What is the Illinois Parentage Act?

The Illinois Parentage Act was passed recently by the Illinois Legislature within the last couple of years, and it provides a major improvement to probate law in the area of posthumous children. A posthumous child would not be deemed a decedent's child for inheritance purposes unless the child was in utero at the time of death, according to the new provisions. Despite the fact that this is the default rule in Illinois, testators have the option to make other provisions in their wills. It can be difficult to write a will or trust, particularly if the testator owns a lot of land, so if you or a loved one are thinking about writing a will or need to change one, you should hire an experienced estate planning lawyer who can make sure that all of your heirs are taken care of in the event of your death.  

The Rights of Children Who Have Been Born After Their Parents Have Passed Away  

Unless the testator expressly given otherwise in his or her will, a child born from in vitro fertilization (IVF) cannot inherit under the Probate Act if the implantation occurred after the decedent's death. Alternatively, even though a testator did not decide what should be done with an inheritance in this case, he or she would always rest easy knowing that any unborn children would be cared for. Legislators were largely motivated by public policy, which acknowledges that all children have the right to their parents' physical, mental, emotional, and financial care.  

As a result, posthumous offspring, as long as they were in utero at the time of the decedent's death, are automatically entitled to the same share of an estate as if they had been born during the decedent's lifetime. Unfortunately, this means that if a man or a woman uses a decedent's egg or sperm to reproduce by in vitro fertilization after the decedent has passed away, the child would not count as a child under Illinois inheritance law, despite being the biological offspring of the decedent.  

Again, this is just the state's default rule, so testators are free to write a will that includes alternative provisions for any children who have yet to be born.  

Estate planning can be challenging, particularly when testators must care for children who have not yet been born. However, it is important to address these topics when arranging an estate to ensure that all of a decedent's loved ones, regardless of when they are born, are cared for.

Request a consultation with an Illinois Probate Attorney. Call our office at (630) 324-6666 or schedule a consultation. You can also fill out our confidential contact form and we will get back to you shortly.

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