November 13, 2012
When Biology Outpaces the Law
It is a known fact that reproductive technology has quickly outpaced the law and has created problems with determining who is the legal parent of a child, especially when it comes to posthumous conception. Artificial Insemination has made it possible that many individuals could be the legal parents of children created with the help of this technology. This has become a problem for estate planners because while the states have many laws that define "descendants" and "issues," it is still difficult to determine who would qualify for this status. Adoption, non-marital children, and children born to surrogates are also giving estate planners headaches, even though it is easy for technology to establish parenthood for these individuals.
Another issue that occurs is that the law on this matter is sometimes completely absent. Thankfully the state intestacy laws still exist, which can give estate planners a guide to plan around their state's respective inheritance laws. Thus, it is still important for an estate planning attorney to "specific what constitutes parentage, whether by adoption, within marriage or by artificial reproductive technology" within an estate plan. There are also several things that the estate planning attorney might want to consider when making an estate plan, such as:
- "who owns the reproductive matter after the donor’s death;
- whether the donor maintains control of reproductive matter by contract or whether it’s personal property that can be disposed of by will or trust;
- whether the donor of the reproductive matter contemplated or consented to posthumous use of that matter;
- whether there should be some distinction between posthumously born children who are the product of eggs that were fertilized before death, as opposed to those who were the product of eggs fertilized post-death;
- the marital status of the parents at the time of death;
- the period between the birth in comparison to the death and/or date of distribution;
- whether gifts to descendants should include adult adoptees or just minor children."
See David Shayne and Sarah S. Butters, The Kids Are Fine, but Who Are the Parents?, Wealth Management, Nov. 6, 2012.
Special thanks to Jim Hillhouse (Professional Legal Marketing (PLM, Inc.)) for bringing this article to my attention.
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Thank you for posting. I will be my definition of "issue" in my dispositive documents to include those born as a result of reproductive technology.
Posted by: Brian J. Cohan | Nov 13, 2012 10:18:35 AM