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Can children be conceived by a person even after he or she has passed away? The answer is: yes.

As the Ontario legislature has aptly recognized, many individuals are freezing their reproductive material, which may be used to conceive children after a person’s death.

The newly introduced Bill 28: All Families Are Equal Act would amend the Succession Law Reform Act to recognize children conceived and born alive after a parent’s death as being the “child” or “issue” of the deceased parent.

In order to qualify as a “child” or “issue”, the following conditions must be met:

  1. The living parent must be the “spouse” of the deceased parent (that is, either married to or living in a conjugal relationship with the deceased parent at the time of death);
  2. The living parent must give written notice to the Estate Registrar for Ontario that he or she may use the deceased parent’s reproductive material to attempt to conceive a child – either with or without the use of a surrogate. This written notice must be in the form provided by the Ministry of the Attorney General, and must be given within 6 months of the deceased parent’s death.
  3. The “child” or “issue” must be born no later than 3 years following the deceased parent’s death, unless a court order is obtained to extend this deadline.
  4. A court must declare the deceased person to be the parent of the “child” or “issue”.

Why is it important to be considered a “child” under the Succession Law Reform Act? First, in many circumstances, this will permit the child who was conceived after death to inherit part of the deceased person’s estate. In other circumstances, the child may have a right to claim financial support from the deceased parent’s estate where the deceased parent did not otherwise make adequate provision for the proper support of the child. For more on these issues see our blog post ‘Til Death do you Part…but not Really: Family Law Obligations Placed upon Estates, published on our Family Connection blog.

The All Families Are Equal Act is not yet in force, but the Ontario government plans to proclaim it into force on January 1, 2017.

For more information about estate issues when conceiving children using a deceased parent’s reproductive material, contact our Wills and Estates Group.

This content is not intended to provide legal advice or opinion as neither can be given without reference to specific events and situations. © 2021 Nelligan O’Brien Payne LLP.

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