Wills, Trusts & Estates Prof Blog

Editor: Gerry W. Beyer
Texas Tech Univ. School of Law

Tuesday, September 30, 2014

Estate Planning in the Wake of Genetic Advances

DNA

Today, the freezing of ova and a sperm for later usage is almost a common practice and is quickly developing.  However, laws have not caught up with these advances.  State law in this realm varies from one jurisdiction to another.  Some states treat genetic material that has been fertilized differently than genetic material that is not fertilized.  A few states mandate that there must be an indication that you intend to have children with the person providing the other half of the genetic material.  “Many areas of the law intersect in this area.  In addition, there are religious and moral issues.  It’s a political hot potato.”

Genetic advances generate issues for estate planning.  Most states recognize children born within nine months of a parents’ death as lawful heirs and few states recognize posthumously conceived children.  This raises questions concerning whether such a child will have inheritance rights and what will be done with the genetic material you left behind?

While these answers may not be clear, it is important to be explicit about your wishes when drafting your estate plan.  When defining beneficiaries who are eligible to inherit, include language such as, “all my children, including those born within X years of my death.” 

It may be better to use a trust for this purpose rather than a will.  “With a trust, you don’t have to close it out in 18-24 months.  You can have things sitting around waiting.”  For example, the trust can hold assets until a child reaches a certain age. 

See Gail Buckner, Some Estate Planning is Really Complicated, Fox Business, Sept. 29, 2014.

Special thanks to Brian Cohan (Attorney at Law, Law Offices of Brian J. Cohan, P.C.) for bringing this article to my attention.

https://lawprofessors.typepad.com/trusts_estates_prof/2014/09/estate-planning-in-the-wake-of-genetic-advances.html

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