Also known as: gestational periods · gestation period · gestation periods · gestation
Written by attorneys — see sources below.
The time between the start of a pregnancy and birth. This interval determines whether a child in utero at a relevant legal moment qualifies as living for purposes such as intestate succession or measuring lives under the rule against perpetuities.
Lisa executes a deed creating a trust for her lineal descendants that measures duration by the lives of shelter clients plus any period of gestation for her niece's child. The niece is in the third trimester when the deed is signed. The explicit inclusion of the gestational period satisfies the rule against perpetuities requirement for that component.
Evan dies in a car accident while his partner Mia is ten weeks pregnant with their child conceived through in-vitro fertilization. Mia gives birth eight months later to a son who lives well beyond 120 hours. The child is deemed living at Evan's death for intestate succession purposes.
Karen dies without a will while pregnant with twins conceived using her late husband's genetic material through assisted reproduction. One twin is born alive and survives more than 120 hours after birth. That twin qualifies as an heir entitled to Social Security survivor benefits.
Karen Capato married Robert Capato in May 1999. Shortly thereafter, Robert was diagnosed with esophageal cancer and was told that the chemotherapy he required might render him sterile. Because the couple wanted children, Robert deposited his semen in a sperm bank before undergoing chemotherapy. Despite Robert's treatment, Karen conceived naturally and gave birth to a son in August 2001. Robert's health deteriorated in late 2001, and he died in Florida in March 2002. His will, executed in Florida, named as beneficiaries the son born of his marriage to Karen and two children from a previous marriage, but made no provision for children conceived after his death. Shortly after Robert's death, Karen began in vitro fertilization using her husband's frozen sperm. She conceived in January 2003 and gave birth to twins in September 2003, eighteen months after Robert's death. Karen Capato claimed survivors insurance benefits on behalf of the twins. The Social Security Administration denied her application. The U.S. District Court for the District of New Jersey affirmed the agency's decision. The court determined that the twins would qualify for benefits only if they could inherit from the deceased wage earner under Florida intestacy law. Under Florida law, a child born posthumously may inherit only if conceived during the decedent's lifetime. The Court of Appeals for the Third Circuit reversed. It concluded that the undisputed biological children of a deceased wage earner and his widow qualify for survivors benefits without regard to state intestacy law. Courts of Appeals had divided on the question, with some circuits reaching conflicting results. The Supreme Court granted certiorari to resolve the conflict.
View caseLiam dies in an accident while a gestational surrogate carries twins made from his genetic material. One twin survives more than 120 hours after birth eight months later. That twin is treated as having been alive at Liam's death for purposes of intestate succession to his estate.
In January 1993, Lauren Woodward and her husband Warren Woodward, who had been married for approximately three and one-half years and remained childless, learned that Warren had leukemia. The couple arranged for a quantity of Warren's semen to be medically withdrawn and preserved through a process known as sperm banking before he began treatment. Warren underwent an unsuccessful bone marrow transplant and died in October 1993, after which Lauren was appointed administratrix of his estate. In October 1995, Lauren gave birth to twin girls who had been conceived through artificial insemination using Warren's preserved semen. In January 1996, she applied to the Social Security Administration for child's insurance benefits under 42 U.S.C. § 402(d)(1) and mother's benefits under 42 U.S.C. § 402(g)(1). The SSA denied the claims on the ground that the twins were not the husband's children within the meaning of the Act. In February 1996, while pursuing appeals from the SSA denial, Lauren filed a complaint for correction of birth record in the Probate and Family Court against the clerk of the city of Beverly, seeking to add Warren as the father on the twins' birth certificates. In October 1996, a Probate Court judge entered a judgment of paternity based on stipulations of voluntary acknowledgment of parentage and ordered the birth certificates amended to declare Warren the children's father. An administrative law judge conducted a de novo hearing. The judge concluded that the children did not qualify for benefits because they were not entitled to inherit from Warren under Massachusetts intestacy and paternity laws. The SSA appeals council affirmed that decision. Lauren appealed to the United States District Court for the District of Massachusetts. The court certified the question regarding the inheritance rights of posthumously conceived children under Massachusetts intestacy law to the Supreme Judicial Court because the parties agreed that a determination under state law was dispositive and no directly applicable precedent existed.
A testator creates a class gift to grandchildren that closes at the death of the testator's last child but expressly accounts for any gestational period. A grandchild in utero at the measuring life death is later born alive. The child counts as in being for purposes of the rule against perpetuities.
Plaintiffs, who are some of the beneficiaries under the will of Eugene H. Emmick, deceased, brought this action for damages against defendant L. S. Hamm, an attorney at law who had been engaged by the testator to prepare the will. They have appealed from a judgment of dismissal entered after an order sustaining a general demurrer to the second amended complaint without leave to amend. The allegations of the first and second causes of action are summarized as follows. Defendant agreed with the testator, for a consideration, to prepare a will and codicils thereto for him by which plaintiffs were to be designated as beneficiaries of a trust provided for by paragraph Eighth of the will and were to receive 15 per cent of the residue as specified in that paragraph. Defendant prepared testamentary instruments containing phraseology that was invalid by virtue of section 715.2 and former sections 715.1 and 716 of the Civil Code. Paragraph Eighth of these instruments transmitted the residual estate in trust and provided that the trust shall cease and terminate at 12 o’clock noon on a day five years after the date upon which the order distributing the trust property to the trustee is made by the Court having jurisdiction over the probation of this will. After the death of the testator the instruments were admitted to probate. Subsequently defendant advised plaintiffs in writing that the residual trust provision was invalid and that plaintiffs would be deprived of the entire amount unless they made a settlement with the blood relatives of the testator under which plaintiffs would receive a lesser amount. As a result, plaintiffs were compelled to enter into a settlement under which they received a share of the estate amounting to $75,000 less than the sum which they would have received pursuant to testamentary instruments drafted in accordance with the directions of the testator. The third cause of action alleges that after admission of the will and codicils to probate, Harold Houghton Emmick, Walton Russell Emmick, Delta Inez Spelman, and Retha Newell instituted a will contest. The executors, defendant, and the contestants reached a settlement agreement under which $10,000 would be paid to the contestants from the assets of the estate in return for releases. Defendant caused to be executed releases which did not preclude the contestants from a subsequent attack upon the validity of the testamentary instruments. As a consequence, the contestants joined in a legal attack upon the validity of the residual clause and plaintiffs would have received an additional sum of $15,000 from the estate if the releases had been prepared in accord with good legal practice. The trial court sustained a general demurrer to the second amended complaint without leave to amend and entered a judgment of dismissal from which the plaintiffs appealed.
Intended parents arrange for a gestational surrogate to carry their child. The surrogate gives birth after the intended mother's death during the pregnancy. The resulting child is treated as having been in gestation during the relevant period for determining legal parentage and inheritance rights.
In 1984 Crispina Calvert underwent a hysterectomy that left her ovaries capable of producing eggs. She and her husband Mark desired a child genetically related to both of them. In 1989 Anna Johnson, a licensed vocational nurse who had previously given birth to a daughter, learned of Crispina's situation from a coworker and offered to serve as a surrogate. On January 15, 1990, Mark, Crispina, and Anna signed a written contract providing that an embryo created from Mark's sperm and Crispina's egg would be implanted in Anna, who would carry the child to term and relinquish all parental rights to the Calverts upon birth. In exchange the Calverts agreed to pay Anna $10,000 in installments, with the final payment due six weeks after birth, and to purchase a $200,000 life insurance policy on Anna's life. The zygote was implanted on January 19, 1990, and an ultrasound confirmed Anna's pregnancy less than a month later. During the pregnancy relations between the parties deteriorated. Anna felt the Calverts were not providing sufficient attention or obtaining the required insurance policy in a timely manner. In July 1990 Anna demanded the balance of the payments or she would refuse to relinquish the child. The following month the Calverts filed suit in superior court seeking a declaration that they were the legal parents of the unborn child. Anna filed her own action to be declared the mother, the cases were consolidated, and the parties agreed to the appointment of a guardian ad litem for the child. The child was born on September 19, 1990. Blood samples taken from Anna and the child excluded Anna as the genetic mother. The parties stipulated that Mark and Crispina were the genetic parents. After a trial in October 1990 the superior court ruled that the Calverts were the child's genetic, biological, and natural parents, that Anna had no parental rights, that the surrogacy contract was enforceable, and that Anna was not entitled to visitation. Anna appealed. The Court of Appeal for the Fourth District, Division Three, affirmed the judgment. The Supreme Court of California granted review.
If the decedent dies during a gestational period that results in the birth of a child who lives at least 120 hours after birth, that child is deemed living at the decedent's death. This rule applies for purposes of intestate succession, homestead allowance, and exempt property. The child then takes as an heir ahead of more remote relatives.
…467 (1944); Gorey v. Guarente , 303 Mass. 569, 576-577 (1939), and that children born after death within the probable period of gestation may inherit as issue of the deceased parent in exception to the general rule. See Bowen v. Hoxie , 137 Mass. 527, 528-529 (1884). See also Waverley Trust Co., petitioner , 268 Mass. 181,…
…45 months). See also Uniform Probate Code §2–120(k), 8 U. L. A. 58 (Supp. 2011) (treating a posthumously conceived child as “in gestation at the individual’s death,” but only if specified time limits are met). No time constraints attend the Third Circuit’s ruling in this case, under which the biological child of married…
…will end and all interests vest within twenty-one years after the death of the settlor’s children plus the usual period of gestation
Gestational period means the time between the start of a pregnancy and birth. This definition applies to the survival rules in intestate succession and related provisions. It also carries over to class gift construction under related sections.
A child in gestation when the period of the rule begins to run who is later born alive is treated as a life in being at the time the period begins. The Restatement also permits inclusion of any period or periods of gestation involved in the situation to which the limitation applies. This treatment prevents invalidation of interests that account for an ongoing pregnancy.
The child must be born alive and survive at least 120 hours after birth for the gestational period rule to deem the child living at the decedent's death. Survival for this brief period satisfies the requirement even if the pregnancy was only in its early stages at death. Failure to meet the survival threshold means the child is treated as predeceasing the decedent.