Timing of Determination for a Fetus in Inheritance and Conflicts of Interest After Birth

- When does a fetus become an heir? Is a special representative necessary? -

In inheritance, a fetus that has not yet been born at the time of the decedent's death can become an issue, for example in the following cases.

A fetus is granted inheritance rights in certain cases, but

and other such points are very important in practice, but what is particularly easy to overlook is the "conflict of interest."
This time, we will explain in detail the timing of determination for a fetus in inheritance and the problem of conflicts of interest after birth, incorporating case law and practical experience.

1 Can a fetus become an heir?

Article 886, Paragraph 1 of the Civil Code stipulates that a fetus is deemed to have already been born regarding inheritance, so if the fetus exists at the time of the decedent's death, it is considered that the child will become an heir.

This is a system for the protection of the fetus.

2 At what point is it determined whether it is a fetus?

What is important is whether it was "conceived at the start of inheritance," and the following two requirements are necessary.

3 When the time of conception is ambiguous

A problem in practice is the case where it is not clear whether it was "truly conceived at the start of inheritance."

Given the normal pregnancy period, there is a high possibility that it was conceived at the start of inheritance, so it is usually treated as an heir.

In this case, the following becomes an issue.

4 How is the time of conception determined?

In practice, it is difficult to determine the exact date of conception, so in professional practice,

and other factors are considered comprehensively.
Medical findings become particularly important when disputes are anticipated during inheritance division discussions.

5. Judicial Precedent Perspective

—Supreme Court Judgment of October 6, 1932—
The judgment was as follows:

In other words, the reasoning is as follows:

This understanding is fundamentally adopted in current practice as well.

6. In the Case of Stillbirth

Under Article 886, Paragraph 2 of the Civil Code, it is stipulated that the provisions do not apply if a fetus is born dead; therefore, in the case of a stillbirth, the individual is treated as having never been an heir from the beginning.

7. Risks of Inheritance Division Before Birth

If there is a fetus, excluding them from the inheritance division on the grounds that they “have not been born yet” can lead to problems,

resulting in an undetermined state, so in practice, inheritance division is usually postponed until after birth.

8. Conflicts of Interest Arising After Birth

This is extremely important in practice; for example,

there are cases where they become co-heirs.
In this case, the issue arises as to whether the mother can act as the legal representative for the child to conduct the inheritance division.

9. What is a Conflict of Interest

　A conflict of interest is a relationship where "the benefit of one party becomes the disadvantage of the other." In inheritance, this typically manifests as:

Because this relationship can occur, the mother, as the person with parental authority, cannot always act as the child's representative.

10 Cases where a special representative is required

　Under Article 826 of the Civil Code, if the interests of the parent and the child conflict, a special representative must be appointed by the family court.

　Since the mother also has her own inheritance share,

may collide. Therefore, the mother cannot independently represent the child in inheritance division discussions, and the appointment of a special representative is necessary.

11 In what cases does a conflict of interest occur?

① Typical example of a conflict of interest

② Examples where there may not be a conflict of interest

There is room to evaluate such cases as not constituting a formal conflict of interest.
　However, in practice, this is handled quite cautiously, and financial institutions or legal affairs bureaus may still request documents for the appointment of a special representative.

12 Can a special representative be appointed before birth?

　This is also an important point of discussion. Since a fetus is treated as a subject of rights in terms of inheritance, an application for the appointment of a special representative for the fetus may be filed with the family court. In practice,

are handled according to the circumstances of the case, but unless there are exceptional circumstances, it is generally considered standard to wait for the birth before conducting inheritance division discussions as mentioned above.

13 Practical points to note

In inheritance cases involving an unborn child,

and other factors require more careful handling than standard inheritance cases. In particular,

can become major issues if the number of heirs changes later.

14 Summary

In inheritance involving an unborn child,

are important. Furthermore, after birth,

may become issues, so it is necessary to proceed carefully, including:

as well.

15 Support from our office

Our office provides support for all aspects of inheritance procedures, including:

We support the entire inheritance process.

If you are in the Sapporo area and are having trouble with inheritance procedures, please feel free to consult us via our website.

Our office website

Administrative Scrivener Sakabe Yoshiyuki Office
Yoshiyuki Sakabe