Also known as: gestational periods · gestation period · gestation periods · gestation
Written by attorneys · grounded in primary & secondary sources — see 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.
Select any source to read its text and confirm it supports the definition.
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.
Liam 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.
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.
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.
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.
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.
…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
…will end and all interests vest within twenty-one years after the death of the settlor’s children plus the usual period of
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.