Regardless of age, marital status, or financial state, ensuring you have an estate plan is imperative. A will is a key part of that plan, and making your wishes known in a legally binding document can help ensure that the state does not decide what becomes of the things you leave behind. A trust is another useful way to ensure those you love are cared for after your death. While it is certainly important to determine who should get Grandma’s china, other provisions tend to be overlooked. Any individual who is a sperm or egg donor, or has embarked on the journey of IVF has several other matters to consider.
One important piece of the fertility and estate-planning puzzle is to determine what should happen to any genetic material, including embryos, after a parent has died. A fertility clinic should address this in its own contracts, however, that provision should match the intentions that the parties have included in their wills. Frozen embryos, eggs, and sperm can be used well into the future, resulting in several possibilities for their handling after death. Whether the person wishes for an embryo to be gestated after he or she has passed away is one of the most significant issues. Would one party want the other to use their genetic material to have another child after death? If so, would the deceased party wish to provide for that child in their estate plan? In addition, would other family members want to include the child in their estate plans as well?
If these pressing questions are not addressed in a legal document, it can have unfortunate consequences. A couple in Texas was killed by a gunman outside their home, leaving behind an 18-month-old son. The legal system was left to grapple with the question of what to do with the 11 embryos the couple froze before their death since there was no will that outlined the disposition of the embryos. Ultimately, because no court in Texas (or the United States for that matter) has ever been faced with this dilemma, the embryos were passed like any other “property” through intestate (without a will) succession. Because the couple’s son is their sole heir, he inherited the embryos. The embryos will remain frozen in storage until he reaches the age of 18, at which time he may decide what to do with the embryos. Leaving an 18-year-old to decide the fate of his potential siblings is a weighty consequence that carries significant emotion for simply failing to execute a will.
To complicate things further, laws vary a great deal regarding the administration of trusts and estates for children who are born posthumously to their parents. Federal judges and legislators tend to shy away from this area of family law when possible and have left this weighty issue for individual states to handle. Some states require written consent from a person wishing to be considered the parent of a child born posthumously, and there is inconsistency among others as to whether that person must be a spouse, or may be any individual. Some jurisdictions impose a timeline for inheritance so the estate can be administered in a timely fashion. For example, in Colorado a child will be treated as living if they are born to a surviving spouse within 45 months of the deceased parent’s death. Other states require the child to be either living or conceived at the time of the decedent’s death, eliminating posthumous conception as an option for inheritance. Many states have yet to rule on whether a posthumous child may inherit from a deceased parent’s estate.
If a surviving genetic parent will not use the embryos, other options exist. Another infertile couple may benefit from the donation of the frozen embryos for adoption. Perhaps there is a desire for the embryos to remain frozen and unused after a parent passes. If so, will that person’s estate assume the cost of preservation and storage? Addressing this is essential since some clinic contracts will stipulate that the embryos be destroyed if payment is stopped.
Estate planning and infertility are sensitive, complex matters that involve the greatest care and attention. When the two intersect, the compassionate team at McArthur Law Firm has the experience and knowledge to create an estate plan that meets all of your needs.