Estate Planning for Infants Genetically Conceived After Death


Recent blogs have discussed planning for children genetically conceived after their parent’s death, and you’ll recall that the Maryland Governor recently approved legislation on that point.  If you’re in a jurisdiction whose legislature has not addressed the issue, however, you can take the matter largely into your own hands through proper estate planning.

The Supreme Court’s decision in Astrue v. Capato, a case we discussed here, taught us that no matter what your estate planning documents say, it is likely that your state legislature has control over whether a child born after your death from your genetic material will be eligible for Social Security survivor benefits. But when it comes to your own estate plan and how your assets will be distributed, generally you have total control. With careful estate planning, you can ensure that children, like the Capato twins, are provided for. If you exclude the possibility for such children from your will, as with federal survivor benefits, it is likely that politicians will decide their fate in the inheritance laws enacted in your own state.

But what about a person who drafted his/her will or trust years ago, at a time when genetically conceived babies were the stuff of fiction? If those documents contemplated and provided for future generations, the question becomes whether these infants are considered members of the class of family members meant to benefit from a Trust created years ago or a Will drafted years ago and never updated.

Moreover, the Maryland law does not address the issue, so we will probably need to wait for the state’s courts to decide the matter when it arises. One option is for the courts to recognize these individuals as members of the class entitled to benefit, even if the trust in question was created by someone years ago. In a 2007 New York County Surrogate’s Court case, Matter of Martin B., the Judge did just that, reasoning as follows: “[A]lthough it cannot be said that in 1969 the grantor contemplated that his ‘issue’ or ‘descendants’ would include children who were conceived after his son’s death, the absence of specific intent should not necessarily preclude a determination that such children are members of the [grantor’s] class of issue.”

Today, clients drafting their estate documents must look ahead and consider whether they want to provide for posthumously conceived children. Ask yourself these questions: “Would you want your daughter-in-law to be able to make herself pregnant with your son’s frozen sperm, to create more beneficiaries of your trust?” or “Do you want your son-in-law to be able to withdraw your daughter’s frozen egg (or their frozen embryo) and find a surrogate mother to make more beneficiaries of your trust?” If not answered clearly in your estate planning documents, the answer will be left to state legislatures and courts.

As I have said many times in the past, estate planning is a process, not a product. It evolves over time, as laws change, as technology changes and as an individual’s own situation changes. The best estate plan is one that is reviewed and updated on a regular basis, at least once every 4 years, if not sooner.

–  Gary Altman, Esq. and Coryn Rosenstock

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