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Estate Planning with an Eye toward Assisted Reproduction

By: Barry E. Haimo, Esq.
April 25, 2019

3D illustration artificial fertilization. Assisted reproductive treatment.

Estate Planning with an Eye toward Assisted Reproduction

Advances in technology have opened many doors in the world of family planning. Partners can conceive by freezing eggs, storing sperm, or reaching out to anonymous donors. But what happens when these events happen after one partner’s death?

This question was brought to the Florida courts, and later the U.S. Supreme Court, in 2012. Karen Capato sought Social Security benefits for her children, born through in vitro fertilization and her late husband’s frozen sperm. She was denied. In Astrue v. Capato, the Supreme Court upheld that denial; the children were not mentioned in the will and therefore could not receive Social Security benefits.

Capato’s husband died at a young age from esophageal cancer. Even if you have not thought about writing a will or appointing a personal representative to distribute your assets, life doesn’t always go as expected. Start creating an estate planning strategy that will cover posthumous conception and other “life surprises.”

How to Create an Estate Planning Strategy With Assisted Reproduction In Mind

Know State Laws

Don’t assume that your state has an open mind about children of LGBT couples or children conceived posthumously. In some states, gay and lesbian parents still have to jump through hoops to be considered “equal” parents of a child conceived through in vitro fertilization. Other states may not allow children access to inheritance if they are not explicitly mentioned in the parent’s last will and testament. Learn the laws to understand how your state may look at your children if you or your partner unexpectedly pass away.

Give Appropriate Access to Genetic Material

Who owns genetic material after you die? Different states have different policies. If you donate sperm or eggs, know what will happen to this material after you die. You may be able to submit a document giving your partner permission to access this material or prevent others from accessing it. Reach out to the organization holding your genetic material in order to give the right people access.

Consider Posthumous Children in Your Will

It can be hard to create an estate planning strategy when potential beneficiaries don’t exist yet. If you and your partner plan on having kids, make sure your will includes this possibility. Reach out to an estate planning attorney for more information about adding posthumous children to your will and how this might affect the way assets are distributed after your death.
The best way to ensure that your family will be protected after your death is to be prepared. After all, life is full of surprises. A solid estate plan will prevent any additional surprises that could take assets and support away from your family.

Author:
Barry E. Haimo, Esq.
Haimo Law
Strategic Planning With Purpose®
Email: barry@haimolaw.com 
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