Estate planning involves making plans for managing and distributing a person’s assets in the event of their death or incapacity. In the context of assisted reproduction technology (ART), estate planning is particularly important because it involves the creation of a new family and the legal relationship between the intended parents, the surrogate mother, and the child. Without proper estate planning, the legal system will determine how an individual’s assets are distributed, which may not align with the deceased’s wishes, and the current laws may not have been updated to enable it to consider a child born via ART.
ART and Inheritance
With an ART procedure, a child may be conceived and born after a parent dies, sometimes many years after a parent dies. Estate planning can become exceedingly complicated when dealing with modern medical advances, and the following are some examples of such complications:
- In a surrogacy case where the intended parents pass away before the child’s birth, determining guardianship for the child can become intricate and challenging. Ensuring the enforcement of the terms outlined in the surrogacy agreement may become problematic if the agreement is not legally valid in the jurisdiction where the will and trust are executed. This uncertainty extends to the legal status of a child not biologically related to the intended parents, adding further complexity to the situation.
- Whether a non-biological child can inherit under a grandparent’s will is also challenging to address.
- Children who are conceived posthumously present further complexities. While existing laws address children conceived before a parent’s death but born afterward, there are no specific provisions for children conceived after a parent’s death. This includes children conceived from frozen eggs, sperm, or embryos after the death of one parent.
- A parent who does not provide for potential unborn children created from their frozen sperm, eggs, and embryos may unintentionally disinherit their own child. For example, in Ohio, a child’s status as the offspring of the deceased is determined by a specific number of days post-death. If the child is born after this period, they may be unable to inherit from the deceased. Florida’s law excludes posthumously conceived children from inheriting unless they are specifically named in the deceased parent’s will. In the UK, the deceased parent is not automatically recognized as a legal parent unless they have provided written consent to be named on the child’s birth certificate. Without such consent, the deceased parent is not considered a “parent” for inheritance purposes, and the child may not be entitled to any inheritance from the deceased parent’s estate.
- If frozen eggs, sperm, or embryos are donated to another person, whom does the resulting child inherit from?
- Failing to recognize a posthumous child legally can result in repercussions, including the possible forfeiture of government benefits. For instance, a minor child in the USA may qualify for Social Security benefits if their parent passes away. Similarly, in the UK, the child could be eligible for Child Benefits, Bereavement Allowance, and other comparable benefits. While in Australia, a Youth Allowance might be accessible. Nevertheless, the availability of these benefits may be jeopardized if the child’s legal status as a beneficiary or their parentage is not established. It is, therefore, crucial to prepare explicit written documentation that addresses these issues if a parent intends to authorize their partner to utilize their eggs, sperm, or embryos following their demise.
- Can frozen embryos be used by one partner without the other partner’s permission? To avoid potential legal disputes in the future, it is crucial to address the rights of a separated or divorced couple regarding the implantation of existing frozen embryos, as well as the use of frozen eggs or sperm by their former partner, in a legally binding document. A form signed at the IVF clinic indicating the disposition of embryos is often insufficient for estate law purposes.
Surrogacy
Estate planning is an important consideration when entering a surrogacy contract. Most surrogacy agreements have a section that addresses the issue of guardianship in the event the intended parents die before taking custody of their child. However, inheritance laws differ from state to state, territory to territory, and country to country. A global provision in a surrogacy agreement is unlikely sufficient to comply with the inheritance law of where the intended parents reside. New York, as an example, requires a written estate plan when the intended parent(s) participate in a surrogacy agreement. Creating a legally enforceable estate plan takes considerable time. You can expect such a document to take approximately 4-6 weeks to complete.
Two options should be considered:
- Before implanting embryos into the surrogate, the intended parents can either create an estate plan if they do not already have one, or they can modify their existing estate planning documents.
- The intended parents can develop an Estate Plan for Assisted Reproduction Technology (EPart). This is like a standard estate plan but designed explicitly for surrogacy agreements or managing frozen eggs, sperm, and embryos. The EPart outlines the parties’ preferences in case of separation, divorce, incapacity to make legal decisions or death.
Note that surrogacy agreements, by themselves, often do not have sufficient legal authority for the purpose of estate planning. This is particularly true in places where surrogacy contracts may be allowed but are not legally enforceable or where such agreements are considered void.
The new or updated existing Estate Plan or Estate Plan for Assisted Reproduction Technology should include instructions to the Executor to fulfill the contractual obligations to the surrogate as outlined in the surrogacy agreement. It should outline who will have custody of the child in the event of the intended parents’ death or incapacity and contain details of how the child’s inheritance will be managed and distributed.
Estate Planning Documents
Is an Estate Planning Document different from a Will? Estate planning documents are legal instruments used to assist individuals in managing and planning their assets and affairs in case of incapacity, disability, or death. These documents are created to ensure that an individual’s wishes are carried out, and that their assets are distributed according to their desires. Estate planning documents encompass wills, trusts, powers of attorney, healthcare directives, and other legal documents. While a Will is a type of estate planning document, other documents fall under this category. Here is a summary of the four most popular Estate Planning Documents:
- Will
A will ensures that your children inherit your financial resources and possessions. If you die without a will, your state or country’s legal system decides who your rightful heirs are.
- A Guardian for your children can be appointed under a provision of a Will.
- An Executor who will act on your instructions and distribute your assets can also be named under a Will.
- You can instruct your Executor to pay storage fees for your frozen eggs, sperm, and embryos.
- You can instruct your Executor to destroy any cryopreserved genetic material upon your death.
2. Durable Power of Attorney
In this document, you can appoint a person to step into your financial shoes if you are mentally or physically disabled, whether temporary or permanent.
- Can be permanent or for a limited time.
- Can be effective immediately or upon the happening of a qualified event.
3. Advance Medical Directives
This provides medical treatment and care instructions if you cannot make decisions due to incapacitation or illness. A Medical Directive document specifies your preferences for end-of-life care, including a Do Not Resuscitate Order, organ donation, and pain management.
4. Trust
It greatly expands your options for managing your assets. You can control how your heirs inherit, especially if they are minors. Some parents prefer that their children receive the bulk of their inheritance when they are over the age of 25 years.
The right of a posthumous child to receive an inheritance differs from country to country and sometimes from state/province to state/province. Therefore, updating your estate planning documents or creating an Estate Plan for Assisted Reproduction Technology (EPart) is important if you intend to participate in ART. Grandparents should also be consulted about updating their estate planning documents to include these possible future children.
We suggest consulting an attorney with expertise in estate planning and ART since these are separate areas of law. Alternatively, you can have both attorneys collaborate to ensure that your interests are fully represented and that the final documents are legally binding.
Author: Karen Synesiou, Infertility Portal, Inc.
