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As technology develops, the law surrounding it usually struggles to keep pace. A key unresolved legal area surrounds Artificial Reproductive Technology (ART). ART encompasses in vitro fertilization (IVF) and cryogenically preserving embryos, and what happens to those embryos in different situations.

Frozen Assets: The Complicated Status of Genetic Materials

ART has created confusion about ownership, decision-making authority, and inheritance of stored genetic material. No federal legislation governs these considerations, but there is an assortment of state legislation in response to real cases over property and inheritance rights of stored genetic material.

For example, Florida requires that a couple enter into a written agreement with their physician about the disposition of the eggs after death or divorce. Until the law is clarified, fiduciaries must balance treating the frozen embryos as assets of the estate while also following the traditional fiduciary duties.

Children of Tomorrow: The Posthumous Conception Challenge

Because of these scientific advances, posthumously conceived children, conceived through a previously frozen egg or sperm sample after the death of the parent, are more prevalent and involve their own set of legal challenges. Most states do not have a statute on whether a posthumously conceived child is entitled to inherit under intestacy law.

In states that have enacted statutes to address this issue, they address:

• Balancing the interests of competing beneficiaries
• Providing for orderly and timely administration of estates
• Protecting the reproductive rights of the deceased parent
• DNA Surprises: When Family Trees Branch Unexpectedly

DNA tests from companies such as 23 and Me and Ancestry.com are also changing the estate planning world. These companies offer databases that make it possible for users to trace their complete family history, sometimes leading to the discovery of surprise family members. Surprise family members could come from adoptions, affairs, and donor sperm or eggs.

Intestacy laws in some states would allow donor-conceived siblings the right to inherit from each other if they died with no Will and no other relatives. Some states allow unknown children born out of wedlock to inherit from their genetic father, or even an adopted child to inherit from their biological parents. However, these are the minority view; in most states, when a child is adopted out of the family, they do not inherit from their genetic family.

Redefining “Family” in Legal Documents

When determining a “class” in an estate planning document, it is important to define who that class could contain. When someone makes a class gift to “my siblings” or “my children,” this could include unknown half-siblings or donor children in some states.

To prevent this, it is crucial to define the class to exclude unknown heirs. One strategy for this may be to name each of the class members instead of putting them into a group like “my siblings.”

Looking Forward: The Need for Legal Clarity

Assisted Reproductive Technology and DNA testing are reshaping the trusts and estates legal landscape. These technologies create questions around property rights, family, and inheritance. There is a need for uniform legislation to cover these complex scenarios, but lawmakers have been hesitant to make adjustments. Until clarity is achieved by uniform legislation, it is imperative to consider estate planning policies that minimize uncertainty and protect the intentions of individuals.

If you have questions about how assisted reproductive technology and DNA testing could affect you or your clients, we’re here to help. Contact us at (443) 589-5600.