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Wednesday, April 6, 2016

Legacy Assurance Plan Article: Dealing with the Consequences of Assisted Reproductive Technology in Your Estate Plan


Summary: In today's modern world, changes in society and advances in science have modified many things, including the definitions related to who is, or is not, a family member. To make sure that your estate plan carries out your objectives exactly as you'd want, it is important to go over your goals in deep detail with your estate planning attorney so that your planning documents can make sure that your wealth and belongings go to everyone you want to inherit from you, and no one that you don't.

Modern technology has allowed people today to enjoy many extraordinary advantages that, in some cases, would have seemed (or actually been) impossible or only a few years or decades ago. For infertile families, the greatest benefit modern technology has created is the ability to have children. 

With the gift of children, however, comes certain additional complexities in estate planning. Whether it's you or a loved one who's considering assisted reproduction, it is important to make sure that your estate plan reflects this aspect of your family dynamic.

Parents of children conceived through assisted reproductive technology are not the only ones who need to consider these issues. As a potential grandparent, you may need to engage in this type of planning. If your son or daughter has frozen genetic material, you need to contemplate whom you want to take from your estate. This is done by making sure that your estate planning documents are very specific and include very specific definitions regarding who is (or is not) a member of a group. In this case, you should discuss your desires with your attorney so that he or she can craft a definition of "grandchildren" that include everyone you want to inherit from you, and no one that you don't. 

People who are seeking to have children through assisted reproduction have a wide array of decisions they should reach and include in their estate plans. One scenario where planning is especially important  involves the freezing of reproductive material for future use. Many courts that have addressed what happens to this material have ruled that it is property, meaning that you can (and should) include directions in your estate plan indicating what should be done with it if you die. Do you want it donated? Destroyed? Distributed to your spouse/partner to do with as he/she sees fit? These are obviously extremely personal decisions, so it's highly important that you get your desires down in writing using your estate plan.

Additionally, it is essential that your plan state how you want to approach any children that come from this assisted reproduction. For example, if you decide to freeze your fertilized eggs, then die before using them, and your spouse/partner uses these fertilized eggs to have a child, what do you want this child to receive from your estate? In some states, a posthumous child conceived using your frozen genetic material can still inherit from you, even if he or she is born more than 9 months after your death, as long as you state that preference in writing (and the child is born within certain statutory time limits.)

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