California Codes

Cal. Probate Code § 249.5 (2026)

✓ current as of May 2026

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For purposes of determining rights to property to be distributed upon the death of a decedent, a child of the decedent conceived and born after the death of the decedent shall be deemed to have been born in the lifetime of the decedent, and after the execution of all of the decedent’s testamentary instruments, if the child or his or her representative proves by clear and convincing evidence that all of the following conditions are satisfied:

(a)The decedent, in writing, specifies that his or her genetic material shall be used for the posthumous conception of a child of the decedent, subject to the following:

(1)The specification shall be signed by the decedent and dated.

(2)The specification may be revoked or amended only by a writing, signed by the decedent and dated.

(3)A person is designated by the decedent to control the use of the genetic material.

(b)The person designated by the decedent to control the use of the genetic material has given written notice by certified mail, return receipt requested, that the decedent’s genetic material was available for the purpose of posthumous conception. The notice shall have been given to a person who has the power to control the distribution of either the decedent’s property or death benefits payable by reason of the decedent’s death, within four months of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first.

(c)The child was in utero using the decedent’s genetic material and was in utero within two years of the date of issuance of a certificate of the decedent’s death or entry of a judgment determining the fact of the decedent’s death, whichever event occurs first. This subdivision does not apply to a child who shares all of his or her nuclear genes with the person donating the implanted nucleus as a result of the application of somatic nuclear transfer technology commonly known as human cloning.

Notes of Decisions

Cited in 8 cases, 2008–2020 · leading case: Vernoff Ex Rel. Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009).

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Vernoff Ex Rel. Vernoff v. Astrue, 568 F.3d 1102 (9th Cir. 2009). · cites it 2× “Finally, California Probate Code § 249.5, though not controlling because it was passed after the insured’s death, see supra n.”

Schafer v. Astrue, 641 F.3d 49 (4th Cir. 2011). · cites it 2× “§ 20-164 (ten-month limit); Cal. Prob.Code § 249.5(c) (two-year limit from acknowledged death); La.”

Astrue v. Capato Ex Rel. B. N. C., 566 U.S. 541 (2012). “See Cal. Prob. Code Ann. § 249.5(c) (West Supp.”

Stephanie Delzer v. Nancy A. Berryhill, 886 F.3d 1282 (9th Cir. 2018). · cites it 6× “BERRYHILL SUMMARY ** Certified Question to California Supreme Court The panel certified the following questions of state law to the California Supreme Court: California Probate Code § 249.5 provides that, for probate purposes, “a child of the decedent conceived and born after…”

Kievernagel v. Kievernagel, 166 Cal. App. 4th 1024 (Cal. Ct. App. 2008). “Such a child is deemed to have been bom within the decedent’s lifetime, if, among other things, it is proved by clear and convincing evidence that the decedent specified in writing “that his or her genetic material shall be used for the posthumous conception of a child.”

Robertson v. Saadat (Cal. Ct. App. 2020). · cites it 3× “” (Prob. Code, § 249.5; see Kievernagel, supra, 116 Cal.”

Vernoff v. Astrue (9th Cir. 2009). · cites it 2× “ASTRUE 7193 [12] Finally, California Probate Code § 249.5, though not controlling because it was passed after the insured’s death, see supra n.”

Stephanie Delzer v. Nancy A. Berryhill (9th Cir. 2018). “” Cal. Prob. Code § 249.5 . Plaintiffs have failed to satisfy Section 249.”

— Cal. Probate Code § 249.5(c) — 2 cases

Schafer v. Astrue, 641 F.3d 49 (4th Cir. 2011). “§ 20-164 (ten-month limit); Cal. Prob.Code § 249.5(c) (two-year limit from acknowledged death); La.”

Astrue v. Capato Ex Rel. B. N. C., 566 U.S. 541 (2012). “See Cal. Prob. Code Ann. § 249.5(c) (West Supp.”

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