Short answer. Yes. Article 1025 requires an heir to be living when the succession opens, but it makes room for the unborn. A child already conceived at the time of the decedent's death can inherit, provided the child is later born alive under the conditions the law sets for when a fetus is considered a person.
What the law says
the heir, devisee or legatee must be living at the moment the succession opens
Civil Code, Article 1025 — The Heir Must Be Living at the Opening. Read the full provision →
What the law says
A child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later
Civil Code, Article 1025 — The Heir Must Be Living at the Opening. Read the full provision →
The heir must be alive when succession opens
Succession opens at the moment the decedent dies, and as a rule only someone alive at that instant can inherit. Article 1025 states that in order to be capacitated to inherit, the heir, devisee or legatee must be living at the moment the succession opens, except where representation properly applies. This requirement keeps the estate passing to persons who actually exist at the decisive moment, rather than to those who died before the decedent or who might come into being only long afterward. The instant of death, once again, is the reference point.
The conceived child is included
The rule would seem to exclude a baby not yet born when the decedent died. But the law does not ignore a child already on the way. Article 1025 provides that a child already conceived at the time of the death of the decedent is capable of succeeding provided it be born later. A child conceived before the death, though still in the womb when succession opens, is therefore treated as capable of inheriting. The law looks forward to the birth, holding the child's place in the succession from the moment of the decedent's death.
Born alive under the law's conditions
This capacity is conditional on the child actually being born and meeting the law's test for when a fetus is regarded as a person. In general, the child must be born alive; and where the child had an intra-uterine life of less than seven months, the law requires that it survive for at least twenty-four hours after complete delivery. If the child is born under these conditions, it is considered to have had the capacity to inherit from the moment of the decedent's death. If it is not, the provisional capacity does not take effect.
Why the law protects the unborn heir
Holding a place for a conceived child prevents the timing of birth from unfairly stripping a child of an inheritance it would otherwise receive. A child conceived before but born after the decedent's death is often exactly the person the decedent would have wanted to provide for. The practical effect is that a pregnancy at the time of death should be taken into account in settling the estate, with the conceived child's share awaiting a birth that satisfies the law's conditions.