Estate Planning For Your Embryos: Do You Have A Plan?

Estate planning for your embryos, eggs, or sperm may seem a bit odd.  Generally, when a person is considering having a child and deciding how they want to conceive, they are not thinking of how it affects their estate plan, their parents’ estate plans, and maybe even their siblings’.  With as many as 20% of American couples experiencing infertility, the use of assisted reproductive technology (ART) and adoption is rising.  This three part blog series will explore some of the concerns that should be addressed when having a child through assisted reproduction or adoption.

So what is assisted reproduction?  Assisted reproduction is a method of conceiving through means other than by sexual intercourse.  ART is any medical or scientific intervention that is utilized for the purpose of achieving live birth from assisted conception.  Assisted reproduction can include storage of genetic material for a future implantation (in vitro fertilization), donated sperm or eggs (whether your partner’s or a third party donor’s), and the use of surrogates to have children with some genetic similarity to one or both of their intended parents.

So how does ART affect your estate plan?

• BASIC DEFINITIONS THROUGHOUT ALL OF YOUR ESTATE PLANNING DOCUMENTS SHOULD BE MODIFIED.
  How does your will or trust define “Child,” “Grandchild,” and “Descendants”? One of the first modifications that should be considered if you are conceiving a child through ART is to any default definitions throughout your estate planning documents (Health Care Power of Attorney, Property Power of Attorney, Will, and Trust).  There are many default definitions the law provides if one’s estate plan does not specifically provide otherwise.  For example, if you fail to effectively define “grandchild” in your estate plan and rely on the default definition, you may be disinheriting any adopted grandchildren, grandchildren conceived with egg or sperm donors, and grandchildren conceived through a surrogate.  You may even consider modifying terms relating to your nieces and nephews and other extended family members to include those born through ART.  Terms that should be encompassed (and modified) in your estate plan include, but are not limited to: child, grandchild, descendants, issue, nieces, nephews, surviving, and heirs.
• YOUR POWERS OF ATTORNEY SHOULD ACCOUNT FOR YOUR STORED GENETIC MATERIAL.
  What happens if you get into a car accident and become incapacitated?  Does your partner have the right to use your genetic material to conceive? Can your partner destroy the genetic material?  Your Power of Attorney should dictate who has control over and or use of any stored genetic material during your incapacity.  Your Power of Attorney should have control to initiate, consent to, and pay for ART procedures.  What about guardians for children born using your genetic material while you are incapacitated?  Your documents should list guardians for any children born utilizing ART during a period in which you are incapacitated.  If you want your gametes harvested while you are incapacitated, your Health Care Power of Attorney should have the power to consent to the retrieval of gametes and any subsequent use of such gametes.
• YOUR WILL OR TRUST SHOULD DISCUSS THE DISPOSITION OF ANY OF YOUR GENETIC MATERIAL AT YOUR DEATH.
  What happens to your genetic material when you pass away?  Would you like to give the genetic material to a specific person?  Will your estate pay for any ART procedures involving your genetic material after your passing? Do you want your partner to be able to use your embryos, sperm, or eggs after your death to conceive a child (posthumous child)?  Do you want your genetic material destroyed, saved, or donated?  Under what terms and conditions?  How long can your genetic material be stored?  Who pays for the storage?
  If you have stored genetic material from ART procedures, your estate planning documents should address the disposition of any remaining material at your death.
• YOUR WILL OR TRUST SHOULD DISCUSS THE INHERITANCE RIGHTS OF CHILDREN CONCEIVED THROUGH ART.
  What if your partner uses your genetic material after you pass away to conceive a child?  Is that child your child for inheritance purposes? What about a child that was conceived through a donor or a surrogate?  What if you donate your genetic material to an unrelated third party?  Are the resulting children yours for inheritance purposes?  Your will or trust needs to address whether any child born utilizing ART is your heir and therefore entitled to inherit through your estate.
• YOUR BENEFICIARY DESIGNATIONS ON ALL OF YOUR ACCOUNTS SHOULD BE UPDATED TO REFLECT ANY CHILDREN BORN THROUGH ART.
  How does your life insurance company define child?  What about your beneficiary designations on your 401(k)s, IRAs, investment accounts, and bank accounts?  Beneficiary forms often have default beneficiary designations that give your assets to your spouse followed by your children.  To avoid unintentionally disinheriting a child born through ART, we advise clients to list all of their children individually instead of relying on an institution’s default language and definitions.
• YOUR FAMILY MAY NEED TO MODIFY THEIR ESTATE PLANS TO ENSURE YOUR CHILD IS NOT UNINTENTIONALLY DISINHERITED.
  Does your family know you conceived through ART?  People do not often discuss their infertility issues with their parents, siblings, aunts, and uncles; however, failing to do so could cause your child to be unintentionally disinherited.  You must carefully weigh your privacy concerns with the potential legal impact.  If you decide to share your journey with your family, they should also modify their estate plans, if they so desire, to include any children conceived through ART.
• YOU NEED TO CONSIDER WHAT YOUR (& YOUR PARTNER’S) LIFETIME RIGHTS ARE TO THE GENETIC MATERIAL.
  What happens to your genetic material if you get divorced?  Can your ex-partner still use the genetic material to conceive?  You should carefully consider what will happen to any stored genetic material during life events such as divorce or separation.  Please see my blog next month titled: “Standard Form Contracts:  Don’t End up like Sofia Vergara!” for further discussion on creating plans for your genetic material during your life.

These questions may seem simple on the surface, but there are often unforeseen consequences when people fail to adequately address these issues in their estate plan.  For example, a woman in Colorado found out she was born using a sperm donor and her “father” was not her biological father.  She found out the sperm donor was deceased and had DNA tests done confirming paternity.  She then filed as an heir to his estate and shared equally in the inheritance with the donor’s other children.  It is likely the sperm donor did not intend that any children born using his donations were to be his heirs and entitled to inherit part of his estate.  However, his estate planning documents defined children as any biological children and made no exceptions for children born through ART.  At Thompson Law, Prof. L.L.C., we understand that infertility is a profoundly private and personal matter for the person experiencing it.  We want to ensure that you are protecting yourself, your family, and your child as best as you can and will address your issues with compassion and confidentiality.