Advances in Reproductive Technology Lead to Estate Planning Obstacles

Under the Uniform Parentage Act as well as New York law, children born through the aid of advanced reproductive technology are treated the same as biological children.


Children who are born through the use of frozen biological material, however, create many estate planning questions, which include how to write estate planning documents and how to structure trusts. 


Know What Federal and New York Law States


Before appreciating the various complexities that can arise from these laws, it is critical to understand what both federal and New York law say about the subject.

The United States Supreme Court held in Astrue v. Capato that state law determines whether a child is entitled to government benefits. 


In 2014, a New York law was signed into effect which helped to articulate what rights children born through advanced reproductive technology have. In Martin B., 841 N.Y.S. 2d 207 (2008), a New York state court held that a posthumously conceived child qualified as an “issue” and descendant” the same as if the child had been biologically born. For a child born through these methods to be viewed on these terms, however, four conditions must be satisfied:


  • A parent must expressly consent in writing to the use of genetic material after his or her death. This must occur seven years before the person passes away.
  • Notice that genetic material has been stored must be provided to an estate representative within seven months of testamentary letters being issued.
  • Written consent of using the materials in such a way must be recorded within a seven-month window after the person’s death.
  • The child must be either born in utero within 24 months or born no more than 33 months after the parent passes away. 


Be Sure to Clearly Define Your Wishes


In the Martin B. case, the New York court noted that its holding was likely to have a limited impact in the future. Instead, the court noted that its interpretation of the trust was a “sympathetic” reading of the trust because at the time the trust was established, its creators could not have anticipated that such a technology would be developed. If you plan on using reproductive technology, you should make sure to clearly express your intentions in your estate plan. 


Inconsistent Results


Because the Astrue v. Capato case stated that each state’s laws determined how assets should be divided, there is no consistency in whether a child will be able to obtain certain types of benefits. Instead, the determination comes down to how each state treats each individual type of benefit. An estate planning attorney can discuss various tools that you can use to make more consistent results for children who are born using such methods.


Speak with an Experienced Estate Planning Lawyer

If you or a loved one has either used or plans on using reproductive technology, it is critical to make sure that your wishes are reflected in your estate planning documents. Contact Ettinger Estate Planning today to schedule a free case evaluation.

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