When sitting down to think about your estate plan you are often faced with choices like what type of trust to place your assets in; or whether to make gifts in life or at death. Furthermore, you face personal questions like who your beneficiaries or executor of your estate will be.
In this process, you might overlook that your (or your beneficiaries’) future, occurs, well, in the future. By that I mean the technology available may be different or completely new when it is time to administer your estate.
One area in which advancements in technology have affected writing estate plans is the area of posthumous conception. Today, medicine and technology enables you to have your reproductive material used to conceive a child long after your death. In other words, there could be heirs to your estate not yet alive or in gestation during your estate administration.
Your estate planning documents can clearly define who is a child of yours (or who is a child of a beneficiary of yours), even if that child is posthumously conceived. Absent a clear direction in your estate planning documents, we must turn to the law, which currently is murky and requires further development. One example is the Uniform Probate Code Section 2-120. This Section has offered guidance for posthumously conceived children of a decedent who died intestate. Essentially, the UPC says that if a child is born of assisted reproduction within 45 months of an individual’s death, than that child will be treated as if it was in gestation at the time of the individual’s death. Thus, a child born almost four years after your death would be treated the same as a child alive at the time of your death.
The UPC Section is just one example of the law dealing with new technology. Would you want the UPC to apply to your estate, or another statute that attempts to deal with posthumous conception? Like most estate planning, it is important to avoid default statutes by asking the right questions and incorporating the answers into your estate plan. As you can see, not only do you have to ask questions about your future, but also the future itself.
– Gary Altman, Esq. and Michael Wolsh, J.D.