According to data provided by the Center for Disease Control (CDC), approximately 1.9% of all infants born in the United States, 81,478 in 2018, were conceived using assisted reproductive technology (ART). ART is defined by the CDC as all fertility treatments in which both eggs and embryos are handled: It can involve a number of procedures, the most well-known being artificial insemination, in-vitro fertilization, and cryopreservation (genetic material frozen for later use). Another related arrangement involves surrogacy, where a woman other than the one who will take on the role of mother carries and gives birth to a child. Surrogacy sometimes utilizes the surrogate’s egg with the father’s sperm and sometimes the surrogate carries an embryo containing genetic material from one or both of the intended parents implanted via in vitro fertilization.
ART can provide a solution for those who are struggling with infertility, interested in avoiding passing on genetic risks, or want to store genetic material for later use, as well as for same-sex couples who want to have children. Although it may be surprising, ART is an issue that could have a major impact on estate planning for families seeking to have children through its use.
Wills and Revocable Living Trusts
Because of the unique issues surrounding ART, it is crucial to create or amend your will or revocable living trust to include children who may be born as a result of ART.
What about posthumously conceived children? Laws have been on the books for quite a while allowing children who are conceived before one parent’s death, but born afterwards, to inherit from the deceased parent, just like children who were born to the deceased person before death. ART has made it possible for children not only to be born after one parent’s death but also to be conceived—e.g., using in vitro fertilization or artificial insemination—after the parent’s death.
The laws addressing ART vary widely from state to state, so it is important to meet with an experienced estate planning attorney in your state to ensure that your estate plan will achieve your goals. Some states consider children posthumously conceived no later than 36 months after the biological parent’s death to be heirs of the deceased parent if that parent left a signed document or other clear and convincing evidence showing an intent for such child or children to be considered his or her heir. Other states require that the child must have been born within two years of the parent’s death, while still others require a written consent, signed by the deceased parent and maintained by the licensed assisting physician, showing a deceased person’s intent to be a parent of the child. In other states, for example, Florida, the law excludes posthumously conceived children from inheriting if they are not named in the deceased parent’s will.
Because of these strict requirements, a parent who has neglected to put a well-thought-out estate plan in place could unintentionally disinherit his or her own child. As a result, it is crucial for those who are utilizing ART–or who may use it in the future–to specifically include posthumously conceived children in their estate plan. It is also important for those who may eventually be grandparents of such children to specifically express their intention to include them in their estate planning documents.
Further, even if ART is not currently being considered, for trusts that may continue in existence for more than one generation, those creating the trust should keep in mind that estate planning documents should take into account not only family relationships currently known to them, but also future generations of the family. All family members intended to benefit from the trust, including possible posthumously conceived children, should be explicitly defined in the trust instrument.
What if the child is born long after death? It is important to keep in mind that a posthumously conceived child could potentially be born many years after one of his or her parents’ death. In some circumstances, this could create uncertainty in the administration of an estate or trust. For example, if the deceased parent makes a gift to a class of beneficiaries, such as all of his or her children, including posthumously conceived children, what would happen if the personal representative has already distributed the gifts to children living at the time of the administration, but another child was born several years later? Would the personal representative have to reacquire part of the gifts from the children to provide for the posthumously conceived child? To address this potential problem, it may be necessary to establish a time limit in which a posthumously conceived child must be conceived or born in order to inherit money or property, even if such a child is expressly included as a beneficiary of a will and/or trust.
Is the child eligible for Social Security survivor benefits? In the 2012 case Astrue v. Capato, the United States Supreme Court decided that a child who is conceived after the death of his or her biological father is only entitled to Social Security dependent’s benefits if the child was entitled to inherit from him under state law. As mentioned above, state law varies widely, so it is important for those who may become parents of posthumously conceived children to express their intention that those children should inherit from them in carefully drafted estate planning documents—and to comply with any other requirements under state law, for example, by providing written documentation of the parent’s intention to be maintained by the assisting physician.
The law regarding surrogacy varies from state to state: Most states permit surrogacy, but a few prohibit such arrangements. Where it is permitted, state law sometimes requires that the intended parents have wills, naming a guardian for their minor child(ren), in order for a surrogacy agreement to be finalized. In situations involving surrogacy, it is crucial to carry out all of the necessary processes to establish legal parentage, as some states allow prebirth orders but others require adoption proceedings after the child is born.
Gifts of Genetic Material
When there has been a decision to use ART, those involved should enter into a well-drafted written agreement (not just a standard form provided by any medical facility involved) that clearly states who will have custody and control of the genetic material involved in the event of death, divorce, or other unforeseen consequences.
Those who have decided to use cryopreservation may wish to give their genetic material to a spouse or partner if they pass away before it is used. Further, as mentioned above, if the material is intended to be used for posthumous conception, it is important for them to specifically state their intention to provide for posthumous children. Because there may be substantial costs to store the genetic material, it may be prudent to set aside a gift to pay those expenses during the estate administration process or to specify trust distributions for this purpose.
Note: If you are considering ART, you may also want to include a statement of your intent and instructions regarding genetic material in your living will and power of attorney to express your wishes regarding the extraction and use of genetic material for conception while you are still living but unable to express your wishes due to illness or unconsciousness.
We Can Help
ART has been a wonderful solution for many families that have struggled with infertility or other issues but that want to have children. We can help you ensure that children born as a result of ART have a financially secure future, as well as help you think through whether you want to make a gift of your genetic material if you pass away before it can be used. Give your Madison Estate Planning Attorney a call today to set up an appointment so we can design the best estate plan for you and all of your children. We are happy to meet with you virtually or by phone if you prefer.
 CDC, 2018 National Summary and Clinic Table Dataset, https://www.cdc.gov/art/artdata/index.html, last visited May 1, 2020.
 566 U.S. 541 (2012).