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Inheritance question in California

Los Gatos, CA |

I live in California. My husband just passed away. But, I still have his sperms and could use that sperms to get pregnant even after he passed away. He had a will and trust been set up. However, the will did not mention about a future baby. So, if I do get pregnant by using his sperms after he already passed away, will the baby have a right to claim his asset in California?

Attorney Answers 3


  1. Yes, with some conditions given in California Probate Code section 249.5. If your husband specified in a dated and signed writing that his genetic material could be used for such a purpose and he specified who could control the use of the genetic material. Also, the child must be conceived within two years of your husband's passing away.

    This answer is intended, but not promised or guaranteed, to be correct, complete and up-to-date, and is of a general nature rather than specific legal advice. This answer is not intended to be a source of advertising, solicitation or legal advice.


  2. This is a new area of law and one that is receiving growing interest in most states. California appears to be one of the more progressive states, in this regard. Given that your husband's Will apparently did not contain the language referenced by Mr. Johnson, your best bet is to contact a probate attorney and have the Will reviewed to determine your rights and those of any future children.

    Your answer may also depend on facts which are not included in your summary, such as whether or not there are persons with intervening rights, under California law, such as children from prior marriages.

    James Frederick

    ***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!


  3. Your question is missing a key component? What is the nature of your property. In addition, the child would not be treated as a pretermitted heir. As such the terms of the trust would continue to control.

    If all your property was community property and the will and/or trust left all community property it would all go to you. As to retirement assets, anything in a 401K or pension would all go to the surviving spouse and most IRA contracts provide the same.

    What assets are your concerned about? That would be more helpful.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

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