Approximately 2% of all babies born in the United States in 2019 (83,946) were conceived using assisted reproductive technology, according to data from the Centers for Disease Control and Prevention (CDC).
The CDC defines ART as all fertility treatments involving the manipulation of both eggs and embryos. It can involve numerous procedures, with artificial insemination, in vitro fertilization (IVF), and cryopreservation being the most well-known (genetic material frozen for later use). Surrogacy is a related arrangement in which a woman other than the one who will assume the role of mother carries and delivers a child. A surrogate may utilize the surrogate’s egg and the father’s sperm or carry an embryo implanted via in vitro fertilization that contains genetic material from one or both of the intended parents.
ART can help those who are struggling with infertility, want to avoid passing on genetic risks, or want to store genetic material for future use, as well as same-sex couples who wish to have children. Surprisingly, ART can have a significant impact on the estate planning of families who use it to have children.
Wills and Living Revocable Trusts
Due to the unique issues surrounding ART, it is essential to include children who may be born using ART in your will or revocable living trust when you create or revise it.
What about children conceived following a parent’s death? There have been laws that allow children conceived before the death of one parent, but born after, to inherit from the deceased parent in the same manner as children born to the deceased parent before death. ART has made it possible for children to not only be born after the death of a parent, but also to be conceived using techniques such as in-vitro fertilization or artificial insemination.
It is essential to meet with an experienced estate planning attorney in your state to ensure that your estate plan will achieve your goals, as the laws governing ART vary widely from state to state. Some states consider posthumously conceived children to be heirs of the deceased parent if they were conceived within 36 months of the parent’s death and the deceased parent left a signed document or other clear and convincing evidence indicating an intent for the child or children to be considered their heir.
Other states require that the child be born within two years of the parent’s death, while others require written consent signed by the deceased parent and maintained by the licensed assisting physician indicating the deceased individual’s intent to be the child’s parent.
Due to these stringent requirements, a parent who fails to create a comprehensive estate plan may unintentionally disinherit their own child. Those who use ART or may use it in the future must therefore include posthumously conceived children in their estate plan. In addition, it is crucial that grandparents include posthumously conceived children in their estate planning documents.
Moreover, even if ART is not currently a consideration, trust creators should remember that estate planning documents should account for future generations of the family, especially for multigenerational trusts. All family members who are intended to benefit from the trust, including any posthumously conceived children, should be specified explicitly in the trust document.
What if the child is born many years after the death of the parent? It is important to remember that a child conceived after a parent’s death could be born many years later. This could cause confusion in the administration of a trust or estate. For instance, a deceased parent may leave a bequest to all of their children, including those conceived after death.
What happens, however, if the posthumously conceived child is born years after the personal representative distributes the gifts to the living children? To provide for the posthumously conceived child, would the personal representative need to reacquire a portion of the gifts from the children? To address this potential issue, a time limit should be established within which a posthumously conceived child must be conceived or born in order to inherit money or property, even if such a child is specifically named in a will or trust.
Are survivor benefits from Social Security available to the child? In the 2012 case Astrue v. Capato, the Supreme Court of the United States ruled that a child conceived after the death of his or her biological father is only eligible for Social Security dependent benefits if the child was entitled to inherit from his biological father under state law. As previously mentioned, state law varies widely; therefore, it is crucial that those who may become parents of posthumously conceived children express their intent that those children inherit from them in carefully drafted estate planning documents, and comply with any other state law requirements, such as providing written documentation of the parent’s intention to be maintained by the assisting physician.
Different states have different laws regarding surrogacy. A few states prohibit surrogacy, but the majority permit it. Some state laws, where allowed, require the intended parents to have wills naming a guardian for their minor children in order to finalize a surrogacy agreement. In situations involving surrogacy, it is essential to complete all required procedures to establish legal parentage, as some states permit prebirth orders while others require adoption proceedings after the birth of the child.
Gifts of Genetic Material
People who decide to use assisted reproductive technology (ART) should enter into a well-drafted written agreement (not just a standard form provided by the medical facility) that specifies who will have custody and control of the genetic material in the event of death, divorce, or other unforeseen circumstances.
Those who opt for cryopreservation may wish to leave their genetic material to a spouse or partner if they pass away before the material is utilized. In addition, as previously mentioned, if the material is intended to be used for posthumous conception, it is crucial that parents express their intention to provide for posthumous children. It may be prudent to set aside funds to cover the cost of storing genetic material during the estate administration process or to specify trust distributions for this purpose.
If you are considering assisted reproductive technology (ART), you may want to include a statement in your living will and power of attorney expressing your intent and instructions regarding the extraction and use of genetic material for conception while you are alive, in case you are unable to express your wishes due to illness or unconsciousness.
ART has been a life-altering solution for many families struggling with infertility or other childbearing obstacles. We can assist you in ensuring that ART-conceived children have a secure financial future. We can also help you decide whether or not to donate your unused genetic material after your death.
Call us today to schedule an appointment so we can design the best estate plan for you and your kids. If you prefer, we can meet with you virtually or over the phone.