Just a few decades ago, an infertile couple had few options other than adoption. Likewise, a single individual with no plans to marry, or a same-sex couple had virtually no options as adoption were not approved for these individuals. Today, however, thanks to artificial reproductive technology, or ART, childless individuals or couples can rely on artificial insemination, egg and embryo donation, and post-death gamete harvesting or conception to give them a child.
Estimates are that about 250,000 children are born each year as a result of one of these methods and the number will only increase in the years to come. While ART has certainly given the dream of parenthood to thousands of people who would otherwise not be able to live it, it also creates some estate planning problems for everyone involved.
As is all too often the case, the law has yet to catch up to real life. Most, if not all, of the legal issues involved in ART are governed by state laws. This means that the way one state handles an ART related issue could differ significantly from how a neighboring state handles the issue…and make no mistake that there are potential issues. A child born through ART may, or may not, be considered an heir under your state’s intestate succession laws. Likewise, that child may, or may not, be considered a dependent for purposes such as retirement benefits and Social Security benefits. If the child is born after your death, which is possible if you give your consent or if someone other than you owns your “banked” genetic material, then the issues of heirship and dependency get even more complicated.
The simple lesson here is that if you are currently using ART, or plan to in the future, be sure to talk to your estate planning attorney about how to incorporate any future children born through ART into your estate plan.
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