According to the Center for Disease Control (CDC), approximately 1.9% of all infants born in the United States in 2018 were conceived using assisted reproductive technology (ART). ART includes all fertility treatments in which both eggs and embryos are handled: The most well-known procedures in this category include artificial insemination, in-vitro fertilization, and cryopreservation (genetic material frozen for later use). Another arrangement involves surrogacy, where a woman other than the one who will take on the role of the mother carries and gives birth to a child. Surrogacy sometimes involves the surrogate’s egg with the father’s sperm and sometimes the embryo contains genetic material from one or both of the parents and is implanted via in vitro fertilization.
ART can help those who are struggling with infertility, avoiding passing on genetic risks, or hoping to store genetic material for later use. This technology also helps same-sex couples who want to have children. No matter how it’s applied, ART can have a major impact on estate planning for prospective families.
Wills and Revocable Living Trusts
It’s wise to create or amend your will or revocable living trust to include children who may be born as a result of assistive technology.
What about posthumously conceived children?
Current laws allow 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, but to be conceived after one parent’s death.
The laws addressing ART vary from state to state, so a meeting with an experienced estate planning attorney in your state can ensure that your plan will achieve your goals. Some states consider children posthumously conceived withing 36 months after the biological parent’s death to be heirs of the deceased parent if that parent left a signed document or other evidence showing an intent for the child to be considered his or her heir. Other states reduce the time limit to two years, while still others require a written consent, signed by the deceased parent and maintained by the licensed assisting physician, showing a deceased person’s intent to be a parent of the child. In other states, for example, Florida, the law excludes posthumously conceived children from inheriting if they are not named in the deceased parent’s will.
Because of these strict requirements, a prospective parent could unintentionally disinherit his or her own child. As a result, those who use ART should specifically include posthumously conceived children in their estate plan. Prospective grandparents of such children should also express their intentions in their estate planning documents.
Further, even if ART is not currently being considered, trusts that may exist for more than one generation should account not only family relationships currently known, but also future generations of the family. Everyone intended to benefit from the trust, including posthumously conceived children, should be defined in the trust instrument.
What if the child is born long after death?
A posthumously conceived child could potentially be born many years after a parents’ death, which can 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 happens if the gifts are already distributed when another child is 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 issue, 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.
Is the child eligible for Social Security survivor benefits?
In the 2012 case Astrue v. Capato, the United States Supreme Court decided that a child who is conceived after the death of a biological father is only entitled to Social Security dependent’s benefits if the child was entitled to inherit from him under state law. State laws vary, so those who may become parents of posthumously conceived children should express their intentions in carefully drafted estate planning documents, and these intentions should comply with state law. For example, some states require this documentation to be maintained by the assisting physician.
Surrogacy laws vary from state to state: Most states permit surrogacy, but a few do not. Some states require intended parents have wills and name a guardian for their minor child(ren) in order for a surrogacy agreement to be finalized. In situations involving surrogacy, parents should complete every step necessary to establish legal parentage. Some states allow prebirth orders but others require adoption proceedings after the child is born.
When there has been a decision to use ART, those involved should create a written agreement (not just a form provided by a medical facility) that clearly states who will have custody and control of the genetic material involved in the event of an unforeseen consequence like death or divorce.
Those using cryopreservation may wish to give their genetic material to a spouse or partner if they pass away before it is used. If the material is intended to be used for posthumous conception, the partners should each specify their intention to provide for posthumous children. Because storing genetic material can be expensive, it may be wise to set aside a gift to cover those expenses during the estate administration process or to create trust distributions for this purpose.
Note: If you considering assistive reproductive technology, include a statement of your intent and instructions regarding genetic material in your living will and power of attorney. You’ll want your wishes known in case you lose your ability to communicate due to illness or unconsciousness.
We Can Help
Technology and modern medicine have helped many families struggling with infertility and other issues. We can help you ensure that children born with assistance have a financially secure future; we can also help you gift your genetic material if you pass away before it can be used. Contact us today to set up an appointment so we can discuss the best estate plan for you and all of your children. We are happy to meet with you virtually or by phone if you prefer.
You can use the link below to schedule a call with Gabriel Katzner, or just call us at 855.528.9637 to learn more about how best to plan today to protect those most important to you