How Assisted Reproductive Technology (ART) and Estate Planning Collide

Have you considered freezing your reproductive material for future use, or have you already? Do you have fertilized embryos in a bank? Have you gone through or are considering the IVF process? If so, you need to consider what happens to your material or embryos upon your incapacitation or death.

Any company assisting you with the above procedures will have policies in place and has to follow state laws regarding procurement and destruction. You have a choice, however, to do more or to do something else. Even if you agree with the plan, your estate plan needs to mirror it in order for everything to go smoothly.

What is Assisted Reproductive Technology?

ART is defined by the CDC as all fertility treatments in which both eggs and embryos are handled: It can involve a number of procedures, the most well-known being artificial insemination, in-vitro fertilization, and cryopreservation (genetic material frozen for later use). Another related arrangement involves surrogacy, where a woman other than the one who will take on the role of mother carries and gives birth to a child. Surrogacy sometimes utilizes the surrogate’s egg with the father’s sperm and sometimes the surrogate carries an embryo containing genetic material from one or both of the intended parents implanted via in vitro fertilization.

ART can provide a solution for those who are struggling with infertility, interested in avoiding passing on genetic risks, or want to store genetic material for later use, as well as for same-sex couples who want to have children. Although it may be surprising, ART is an issue that could have a major impact on estate planning for families seeking to have children through its use.

Enter Wills and Revocable Living Trusts

Due to the unique issues surrounding ART, it is crucial to create or amend your will or revocable living trust to include children who may be born as a result of ART.

What about posthumously conceived children?

Laws have been on the books for quite a while allowing children who are conceived before one parent’s death, but born afterwards, to inherit from the deceased parent, just like children who were born to the deceased person before death. ART has made it possible for children not only to be born after one parent’s death but also to be conceived—e.g., using in vitro fertilization or artificial insemination—after the parent’s death.

The laws addressing ART vary widely from state to state, so it is important to meet with an experienced estate planning attorney in your state to ensure that your estate plan will achieve your goals.

CALIFORNIA LAW

In California, Probate Code Section 249.5 dictates the rules for posthumously conceived children. In general terms, it states the following:

For the purpose of property distribution after death, a child of the deceased person who was both conceived and born after the person’s death will be treated as if the child were born during the deceased person’s lifetime if ALL of the following criteria is met:

(a) The deceased person drafted a specific document stating that his or her genetic material shall be used for the purpose of conceiving a child post-death and it must (1) be signed by the decedent and dated; (2) the document may be revoked or amended only by a separate 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 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 must be 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 (A TRUSTEE OR LIFE INSURANCE COMPANY, ETC.), 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.

Why Do You Need to Plan for Your Incapacitation or Death in Relation to ART?

Due to California’s strict requirements, a parent who has neglected to put a well-thought-out estate plan in place could unintentionally disinherit his or her own child. As a result, it is crucial for those who are utilizing ART--or who may use it in the future--to specifically include posthumously conceived children in their estate plan. It is also important for those who may eventually be grandparents of such children to specifically express their intention to include them in their estate planning documents.

Further, even if ART is not currently being considered, for trusts that may continue in existence for more than one generation, those creating the trust should keep in mind that estate planning documents should take into account not only family relationships currently known to them, but also future generations of the family. All family members intended to benefit from the trust, including possible posthumously conceived children, should be explicitly defined in the trust instrument.

What if the child is born long after death?

It is important to keep in mind that a posthumously conceived child could potentially be born many years after one of his or her parents’ death. In some circumstances, this could create uncertainty in the administration of an estate or trust. For example, if the deceased parent makes a gift to a class of beneficiaries, such as all of his or her children, including posthumously conceived children, what would happen if the personal representative has already distributed the gifts to children living at the time of the administration, but another child was born several years later? Would the personal representative have to reacquire part of the gifts from the children to provide for the posthumously conceived child? To address this potential problem, it may be necessary to establish a time limit in which a posthumously conceived child must be conceived or born in order to inherit money or property, even if such a child is expressly included as a beneficiary of a will and/or trust.

Is the child eligible for Social Security survivor benefits?

In the 2012 case Astrue v. Capato,[1] the United States Supreme Court decided that a child who is conceived after the death of his or her biological father is only entitled to Social Security dependent’s benefits if the child was entitled to inherit from him under state law. As mentioned above, state law varies widely, so it is important for those who may become parents of posthumously conceived children to express their intention that those children should inherit from them in carefully drafted estate planning documents—and to comply with any other requirements under state law, for example, by providing written documentation of the parent’s intention to be maintained by the assisting physician.

Surrogacy

The law regarding surrogacy varies from state to state: Most states permit surrogacy, but a few prohibit such arrangements. (Surrogacy IS permitted in California.) Where it is permitted, state law sometimes requires that the intended parents have wills, naming a guardian for their minor child(ren), in order for a surrogacy agreement to be finalized. In situations involving surrogacy, it is crucial to carry out all of the necessary processes to establish legal parentage, as some states allow prebirth orders but others require adoption proceedings after the child is born.

Gifts of Genetic Material

When there has been a decision to use ART, those involved should enter into a well-drafted written agreement (not just a standard form provided by any medical facility involved) that clearly states who will have custody and control of the genetic material involved in the event of death, divorce, or other unforeseen consequences.

Those who have decided to use cryopreservation may wish to give their genetic material to a spouse or partner if they pass away before it is used. Further, as mentioned above, if the material is intended to be used for posthumous conception, it is important for them to specifically state their intention to provide for posthumous children. Because there may be substantial costs to store the genetic material, it may be prudent to set aside a gift to pay those expenses during the estate administration process or to specify trust distributions for this purpose.

Note: If you are considering ART, you may also want to include a statement of your intent and instructions regarding genetic material in your living will and power of attorney to express your wishes regarding the extraction and use of genetic material for conception while you are still living but unable to express your wishes due to illness or unconsciousness.

I Can Help

ART has been a wonderful solution for many families that have struggled with infertility or other issues but that want to have children. I can help you ensure that children born as a result of ART have a financially secure future, as well as help you think through whether you want to make a gift of your genetic material if you pass away before it can be used. Contact me today for a FREE 30 MINUTE CONSULTATION or to set up an appointment so we can design the best estate plan for you and all of your children.

[1] 566 U.S. 541 (2012).