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Massachusetts First on Modern Conception and Inheritance

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If a husband and wife “bank” sperm so that the wife may conceive artificially, and the wife conceives through insemination of this sperm after the husband dies, will children resulting from such a pregnancy enjoy the inheritance rights of “natural” children in Massachusetts?

Last week the Massachusetts Supreme Judicial Court answered this question of law at the request of the federal District Court, holding that children conceived after their biological father’s death have the same rights to inherit as children conceived naturally if the genetic relationship is established and then proof is given that the deceased parent consented to the conception and to the support of the resulting children. Woodward v. Commissioner of Social Security (1/02/02) is the first published opinion of its kind in the country.

In 1993, Warren Woodward was diagnosed with and died from leukemia. He and his wife, Lauren, “banked” sperm before his treatment started given the likelihood of sterility thereafter. In late 1995, Ms. Woodward gave birth to twin girls conceived through artificial insemination of Mr. Woodward’s sperm.

Ms. Woodward applied for but was denied federal Social Security “child’s” and “mother’s” benefits in 1996. Despite a probate and family court adjudication of paternity, SSA denied the claim. Ms. Woodward asked the federal District Court to order release of the benefits, and that Court asked the Massachusetts Supreme Judicial Court to decide the legal question.

The Massachusetts high court finds middle ground between Ms. Woodward’s view that all children conceived posthumously should inherit under state law, and the government’s view that, since such children do not exist at the time of the parent’s death, they should be strictly denied the right to inherit.

The Woodward court embraces foremost the legislature’s concern that all children get the same rights and treatment under the law regardless of ‘accidents of birth.’ The Court reasons that children conceived posthumously should be entitled to the same rights to financial support as are children conceived before a parent’s death. However, the Woodward Court also weighs the state’s interest in timely administration of estates as well its interest in insuring the integrity of the decedent’s reproductive rights. The Court speculates that limitations periods for paternity claims against estates may affect claims from posthumously conceived children. The Court also emphasizes that genetic paternity alone is not enough; the deceased parent must have had some intent to have and to support children.

Arizona has no precedent to guide similar questions. Medical technology will continue to challenge a slow-moving legal system in all states unless state legislatures take the initiative.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.