Inheritance Rights of Unborn and Posthumously Born Children in Louisiana

Louisiana succession law addresses one of the more poignant questions that can arise after a death: what happens to a child who was not yet born when their parent died? The answer depends on whether the child was conceived before or after the parent’s death, and in some cases, on specific written authorizations the parent left behind.

Children Conceived Before Death and Born After Death

Louisiana Civil Code Article 940 provides a clear rule for the most common situation: a child conceived before a parent’s death but born after the parent dies.

Such a child is treated as having existed at the time of the parent’s death and has the same inheritance rights as any other child born during the parent’s lifetime. The fact that the child had not yet been born at the moment of the parent’s death does not affect their legal rights.

This means the posthumously born child:

• Has full rights as a forced heir (if they qualify by age or disability)
• Inherits equally with other children in an intestate succession
• Can receive a legacy under a will on the same terms as other children

Children Conceived After a Parent’s Death

More unusual — but increasingly relevant with advances in reproductive medicine — is the situation where a child is conceived using the gametes (sperm or eggs) of a person who has already died.

Louisiana law provides limited inheritance rights for children conceived posthumously when both of the following conditions are met:

1. The deceased parent left written authorization for their surviving spouse to use their gametes after their death.
2. The child is born to the surviving spouse within three years of the deceased parent’s death.

If both conditions are satisfied, the posthumously conceived child may inherit property from the deceased parent. If either condition is not met, the child does not have inheritance rights from that parent under Louisiana succession law.

Practical Implications

For families navigating succession after a death where a pregnancy is involved — or where reproductive medicine decisions were made before death — the succession timeline matters. A succession cannot be fully closed while inheritance rights of an unborn or unconceived child remain unresolved.

The succession representative has a duty to account for all potential heirs. If a posthumously born child is expected, the court may need to defer final distribution until the child is born and their rights are confirmed.

Estate Planning Considerations

When an Unborn Child Can Inherit Under Louisiana Law

Louisiana Civil Code article 939 establishes the rule for unborn children: a child who is conceived at the time the succession opens — the moment of the decedent’s death — has the capacity to inherit, provided the child is later born alive. The child does not need to be viable or in any particular stage of development at the time of death; the only requirements are that conception occurred before the death and that the child is born alive. A child born alive even briefly acquires full juridical personality and can inherit; a stillborn child, never having acquired juridical personality, cannot.

When a child is conceived before but born after the decedent’s death, that child is treated as if they were born at the moment of death for purposes of the succession. Their inheritance rights are identical to those of children already born. If the deceased parent had a will that named children as beneficiaries without specifying which children, the after-born child shares in the legacy. If there is no will, the child inherits their intestate share alongside the other children under Louisiana’s succession rules. The child’s status as conceived but not yet born at the time of death does not reduce their share.

Forced heirship applies equally to an unborn child who meets the age and disability criteria. A child under 24 is a forced heir and entitled to their légitime — a minimum share of the estate the parent cannot will away — regardless of what the will says. If the will fails to provide for the unborn forced heir and is not updated before the parent’s death, the child can assert a forced heir claim to recoup the minimum share they were entitled to receive.

Posthumously Conceived Children and the Limits of Louisiana Law

Assisted reproductive technology has created situations that existing Louisiana law does not cleanly address. A person may create embryos with a partner or through sperm or egg donation, and those embryos may remain frozen at a fertility clinic after the donor dies. If a child is subsequently conceived from frozen genetic material and born after the donor’s death — sometimes months or years later — the question of whether that child can inherit from the deceased donor is legally uncertain in Louisiana.

Under the plain text of Louisiana Civil Code article 939, a posthumously conceived child was not conceived at the time the succession opened and therefore does not have the capacity to inherit through the succession as a matter of law. Unlike a child who was already a developing fetus at the time of death, an embryo that does not yet exist cannot satisfy the “conceived at the time of succession” requirement. Louisiana courts have not directly addressed this issue in a reported decision, and no Louisiana statute specifically grants posthumously conceived children inheritance rights.

The practical solution for parents who have created embryos or who have stored genetic material is explicit estate planning. A will or trust can specifically name posthumously conceived children as beneficiaries, instruct the trustee to hold assets in reserve for a specified period after death to allow for posthumous conception and birth, and define when the child must be born to qualify as a beneficiary. Without such planning, a posthumously conceived child’s inheritance rights rest on uncertain legal ground that may require litigation to resolve — and may ultimately fail under current Louisiana law.

Pretermitted Heirs: Children Born or Adopted After a Will Is Executed

Louisiana Civil Code article 1625 addresses the pretermitted heir — a child born or adopted after the testator executed their will who is not mentioned in the will, either because the will was not updated or because the testator forgot to include the child. A pretermitted heir is entitled to receive the intestate share they would have received had the decedent died without a will, unless the will shows the omission was intentional or the child received a substantially equivalent amount outside the will through lifetime gifts or beneficiary designations.

The pretermitted heir doctrine interacts with forced heirship in an important way. If the after-born child qualifies as a forced heir — which any child under 24 does — the child can assert both a pretermitted heir claim and a forced heir claim. The forced heir claim guarantees the légitime regardless of what the will says. The pretermitted heir claim may be more generous if the intestate share exceeds the légitime. The child is entitled to whichever is larger, though there is no double-recovery.

Keeping a will current after major life events — the birth of each child, adoption, the death of a named beneficiary — is the simplest protection against both pretermitted heir claims and unintended distributions. A will should be reviewed every few years and updated whenever the family situation changes. Naming children as a class (“my children, in equal shares”) rather than by name avoids the problem entirely for after-born children, as any child born before the testator’s death is automatically included in the class definition.

If you have concerns about inheritance rights for future children — whether through natural birth or assisted reproductive technology — estate planning documents can address these situations explicitly. A well-drafted will can specify your intent about posthumously conceived children and ensure your estate plan reflects your wishes.

Contact Scott Law Group — Estate Counsel or call (504) 264-1057 if you have questions about inheritance rights in a Louisiana succession or estate planning for these situations.

This article provides general information about Louisiana succession law and is not legal advice for your specific situation.

Consult an Attorney Before the Succession Closes

If a pregnancy is involved in a Louisiana succession — whether the child was conceived before or after the parent’s death — the succession cannot and should not be finalized until the child’s inheritance rights are fully addressed. Scott Law Group — Estate Counsel advises succession representatives and families on protecting the rights of unborn heirs. Call (504) 264-1057 to discuss your situation.